We have repeatedly heard it said that that the currently proposed telecom immunity provisions of the new FISA legislation do not create a new defense for telecoms who are defendants in civil litigation. That is true but it is only half of the truth. The whole truth is that while no new defense is created, this legislation will place an absurd and excessive burden upon plaintiffs in such suits! Whether a new defense were to be created or an absurd and excessive burden is placed upon plaintiffs, the net effect is the same; justice will be impeded!
Let's cut right to the bottom line. The proposed legislation DOES NOT create any new legal defense. It simply places a severe and excessive burden upon PLAINTIFFS instead! Here is the language of the releveant section of the House bill as passed:
`SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
`(a) Requirement for Certification- Notwithstanding any other provision of law, a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that--
`(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;
`(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
`(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;
`(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was--
`(A) in connection with an intelligence activity involving communications that was--
`(i) authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007; and
`(ii) designed to detect or prevent a terrorist attack, or activities in preparation for a terrorist attack, against the United States; and
`(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--
`(i) authorized by the President; and
`(ii) determined to be lawful; or
`(5) the person did not provide the alleged assistance.
`(b) Judicial Review-
`(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.
`(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).
`(c) Limitations on Disclosure- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall--
`(1) review such certification and the supplemental materials in camera and ex parte; and
`(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.
`(d) Role of the Parties- Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court's written order that would reveal classified information in camera and ex parte and maintain such part under seal.
`(e) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General.
`(f) Appeal- The courts of appeals shall have jurisdiction of appeals from interlocutory orders of the district courts of the United States granting or denying a motion to dismiss or for summary judgment under this section.
`(g) Removal- A civil action against a person for providing assistance to an element of the intelligence community that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.
`(h) Relationship to Other Laws- Nothing in this section shall be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law.
`(i) Applicability- This section shall apply to a civil action pending on or filed after the date of the enactment of the FISA Amendments Act of 2008.
`SEC. 803. PREEMPTION.
`(a) In General- No State shall have authority to--
`(1) conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community;
`(2) require through regulation or any other means the disclosure of information about an electronic communication service provider's alleged assistance to an element of the intelligence community;
`(3) impose any administrative sanction on an electronic communication service provider for assistance to an element of the intelligence community; or
`(4) commence or maintain a civil action or other proceeding to enforce a requirement that an electronic communication service provider disclose information concerning alleged assistance to an element of the intelligence community.
`(b) Suits by the United States- The United States may bring suit to enforce the provisions of this section.
`(c) Jurisdiction- The district courts of the United States shall have jurisdiction over any civil action brought by the United States to enforce the provisions of this section.
`(d) Application- This section shall apply to any investigation, action, or proceeding that is pending on or commenced after the date of the enactment of the FISA Amendments Act of 2008.
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First, let us attend to the phrase "...shall be promptly dismissed..." as opposed to "...may be promptly dismissed...". "May" is discretionary whereas "shall" is mandatory. So, if the specified requirements are met then the the civil suit MUST be promptly dismissed. No discretion is provided for!
Next, we see that the suit shall be promptly dismissed IF the ATTORNEY GENERAL makes certain certifications. So the entire question of dismissal is predicated upon certifications by Bush's Attorney General!
Next, there is provision for review. Here is the language regarding the AG's certifications: "...(a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section." So, once again we see the non-discretionary term "shall". The AG's certifications "...SHALL be given effect unless...". Unless what? Unless the court finds that the certifications are not supported by substantial evidence. In other words, the AG's certifications are ASSUMED to be valid UNLESS PROVEN otherwise during the course of a review BUT, as we shall see, a review is NOT MANDATED.
What, precisely, may be reviewed to determine if the AG's certifications are valid? "`(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d)."
Oddly enough, here we find the discretionary term "may" being used, "...the court MAY examine...". In other words, the court is not MANDATED to review such materials. It may decline to review such materials if it so chooses! In that case, the AG's certifications automatically "...shall be given effect...". In addition, let us not fail to notice that this clause is PROSCRIPTIVE in nature! That is, it is telling us that only certain specific materials "may" be reviewed AND that any other materials are specifically EXCLUDED! So, if you want to present evidence which is outside of what is defined as permissible, you can't do it, regardless if how damning it may be!
Now, here comes the REALLY good part!
"`(c) Limitations on Disclosure- If the Attorney General files a declaration under section 1746 of title 28, United States Code, that disclosure of a certification made pursuant to subsection (a) or the supplemental materials provided pursuant to subsection (b) or (d) would harm the national security of the United States, the court shall--
`(1) review such certification and the supplemental materials in camera and ex parte; and
`(2) limit any public disclosure concerning such certification and the supplemental materials, including any public order following such in camera and ex parte review, to a statement as to whether the case is dismissed and a description of the legal standards that govern the order, without disclosing the paragraph of subsection (a) that is the basis for the certification.
`(d) Role of the Parties- Any plaintiff or defendant in a civil action may submit any relevant court order, certification, written request, or directive to the district court referred to in subsection (a) for review and shall be permitted to participate in the briefing or argument of any legal issue in a judicial proceeding conducted pursuant to this section, but only to the extent that such participation does not require the disclosure of classified information to such party. To the extent that classified information is relevant to the proceeding or would be revealed in the determination of an issue, the court shall review such information in camera and ex parte, and shall issue any part of the court's written order that would reveal classified information in camera and ex parte and maintain such part under seal.
`(e) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General."
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What is this saying? It says that if the AG files a declaration that the disclosure of his certifications and/or materials which are to be reviewed "...would harm the national security of the United States..." THEN certain restrictions AUTOMATICALLY apply! Notice that it takes only a declaration by the AG to put restrictions in place!
What sort of restrictions are we talking about here? Materials would be reviewed by the court in secret! Disclosure of the AG's certifications, materials reviewed, court orders and participation of the plaintiff(s) would ALL be limited!
Here is the icing on the cake! "`(e) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or the Deputy Attorney General." Again, this clause is PROSCRIPTIVE in nature. In other words, ONLY the AG, Acting AG or Deputy AG may perform the duties of the AG under this section!
The bill goes on to state that such civil actions may NOT be brought in state courts but ONLY in Federal Courts. In other words, you're going to end up under the thumb of Bush's AG no matter how you slice it and the whole process is going to be subject to certifications and declartions by Bush's AG which will essentially predetermine the outcome of the case because they are so PROSCRIPTIVE in nature!
So, the fact that the legislation creates no new defense is really a moot point. It doesn't have to create a new defense in order to impede justice. Instead, it merely limits the plaintiffs and places such absurd and excessive restrictions up them that justice is impeded by that means!