FISA Procrastination

By December 23, 2007Briefly Legal, Communications, Economy

The Los Angeles Times’s editorial page harshly criticizes Senate Majority Leader Harry Reid (D-NV) for punting on foreign intelligence surveillance legislation, letting Sen. Chris Dodd (D-CT) set the terms of the debate through Dodd’s opposition to telecom immunity. (“Wait! I’ve just returned from campaigning in Iowa! Start all over!”) The Times’ criticism seems a little too process-oriented, but given the Feb. 1st expiration date in current law, the delays weren’t a positive development.

Attorney General Michael Mukasey spoke on the FISA rewrite last week at the American Bar Association’s National Security Law Breakfast. His prepared remarks are here. He highlights several specific provisions in the legislation concerning immunity for the telecommunications companies that assisted in federal surveillance of foreign communications:

Some, however, argue that we should not provide blanket immunity because the private sector will have less incentive in the future to insist on the Government’s compliance with applicable statutes. The liability protection offered in the Intelligence Committee bill, however, is not blanket immunity.

It applies only in a very narrow set of circumstances—if the Attorney General certifies to a court that the company either (1) did not provide the alleged assistance, or (2) did provide assistance between September 2001 and January 2007 with communications intelligence activities designed to detect and prevent a terrorist attack, and only after receiving a written request from a high-level Government official indicating that the activity was authorized by the President and determined to be lawful.

A court must review this certification before an action may be dismissed, and the immunity does not extend to the Government, Government officials, or any criminal conduct. In short, the provision in the Intelligence Committee’s bill would provide protection only in circumstances where such protection is appropriate.

A useful clarification left out of much of the discussion on telecom immunity.

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