A Little Bit More on the FISA Compromise

By June 20, 2008General

Reference materials, cross-posted from Point of Law.com:

  • The Electronic Frontier Foundation’s news release denouncing the “sham compromise.” EFF’s analysis of the bill. (EFF has represented private parties in lawsuits against the telecoms.)
  • ACLU news release, calling the “Hoyer/Bush Surveillance Deal” unconstitutional.
  • Statement by Sen. Russ Feingold (D-WI) calling the legislation, in effect, a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham.
  • And, finally, a blog post from a lawyer who supports the agreement. With respect to the telecom immunity, Paul Mirengoff of Powerline observes: “In prior versions of this legislation, the standard of review with respect to certifications by the Attorney General was “abuse of discretion.” Thus, those who wish to limit the immunity grant can claim a victory of sorts based on the inclusion of a “substantial evidence” standard. In practice, however, the new standard should not be a difficult one to meet. Absent a very liberal, very mischievous judge, a telecom company that deserves immunity should be able to obtain it rather summarily.”

    UPDATE (9:50 a.m.): Andrew C. McCarthy, one of the few to write consistently on this legislation from the perspective of wanting effective intelligence, comments today in “A Good Deal On Surveillance Reform“:

    Here is the bottom line: Our intelligence agencies will once again have authority to conduct aggressive monitoring of foreign powers, including terrorist organizations, which threaten the United States. In particular, this will be the case overseas — that is, when foreigners located outside our borders communicate with each other. The Central Intelligence Agency and the National Security Agency will essentially be able to collect foreign intelligence without interference from the courts, the status quo ante that was U.S. law for decades before being upset by a secret court ruling last year.

    Moreover, the telecommunications companies which patriotically complied with administration requests for assistance in the emergency conditions that obtained after nearly 3,000 Americans were mass-murdered in the 9/11 attacks will receive retroactive immunity. That is, they will be relieved of the potential billions in liability they (and their shareholders and customers) faced in scores of lawsuits.

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