Steny Hoyer’s “Compromise” Is a Sell-Out

As many of you already know, a “bipartisan deal” has been reached in the House that gives the president huge additional powers to conduct electronic surveillance without a court order. The proposed legislation includes full retroactive immunity for the telecoms (emphasis in original):

The provision granting amnesty to lawbreaking telecoms, Title VIII, has the exact Orwellian title it should have: “Protection of Persons Assisting the Government.” Section 802(a) provides:

[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 properly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that . . . (4) the assistance alleged to have been provided . . . was —

(A) in connection with 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 prevent or detect a terrorist attack, or activities in preparation of a terrorist attack, against the United States” and(B) the subject of a written request or directive . . . indicating that the activity was (i) authorized by the President; and (ii) determined to be lawful.

So all the Attorney General has to do is recite those magic words — the President requested this eavesdropping and did it in order to save us from the Terrorists — and the minute he utters those words, the courts are required to dismiss the lawsuits against the telecoms, no matter how illegal their behavior was.

The surveillance procedure itself is police state heaven. The Attorney General and Director of National Intelligence can undertake “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information” for up to a year. Persons located inside the United States cannot be spied on, but the language of this restriction leaves plenty of wiggle room for “mistakes” (emphasis mine):

‘‘(b) LIMITATIONS.—An acquisition authorized under subsection (a)—‘‘(1) may not intentionally target any person known at the time of acquisition to be located in the United States;

‘‘(2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;

‘‘(3) may not intentionally target a United States person reasonably believed to be located outside the United States;

‘‘(4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and

‘‘(5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

That last is particularly reprehensible, given that everything this legislation allows the government to do violates the Fourth Amendment. The government does not need to establish probable cause or get a court order to conduct electronic surveillance. The only requirement is that the Attorney General or Director of National Intelligence “provide to the Foreign Intelligence Surveillance Court a written certification and any supporting affidavit, under oath and under seal,” within seven days after the surveillance begins. The certification is meaningless from any enforcement standpoint; all it is, is the Attorney General’s or DNI’s say-so that the surveillance is necessary for national security purposes, and that procedures are in place to ensure United States persons are not targeted.

As pro forma as the certification procedure is, the government can avoid it altogether, simply by requesting an indefinite extension:

‘‘(2) REQUIREMENTS.—A certification made under this subsection shall—


‘‘(D) include— ‘‘(i) an effective date for the authorization that is at least 30 days after the submission of the written certification to the court; or ‘‘(ii) if the acquisition has begun or the effective date is less than 30 days after the submission of the written certification to the court, the date the acquisition began or the effective date for the acquisition; …


‘‘(3) CHANGE IN EFFECTIVE DATE.—The Attorney General and the Director of National Intelligence may advance or delay the effective date referred to in paragraph (2)(D) by submitting an amended certification in accordance with subsection 2 (i)(1)(C) to the Foreign Intelligence Surveillance Court for review pursuant to subsection (i).

The text of the bill (pdf) is here. I am making my way through it, and will write more when I finish.

One Response to “Steny Hoyer’s “Compromise” Is a Sell-Out”

  1. Chief says:

    Steny Hoyer comes off much worse than Bush. I know, hard to believe. And Pelosi has got to be in this with him.


  1. Steny Hoyer’s “Compromise” Is a Sell-Out « Liberty Street - [...] Cross-posted at Comments from Left Field. [...]
  2. Video Analysis of FISA Compromise | Comments from Left Field - [...] does a great job giving you the written breakdown of Steny Hoyer’s FISA “compromise” [...]

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