The FISA “compromise” I alluded to earlier today has now been released. I haven’t yet had time to analyze the text of the bill, but one thing that’s clear from the accompanying summary is that the immunity provisions are as bad as civil libertarians feared. Here’s Steny Hoyer’s summary of the “improvements” to the immunity language:
This new standard [for granting immunity] provides for meaningful review by the District Courts, where the cases are currently pending, of whether companies received written directives from the government requesting post‐9/11 assistance.
It seems to me that this misses the point rather badly. Under our system of government, searches are conducted pursuant to warrants or other court orders. This is an important check on the executive branch’s surveillance powers because it ensures an independent magistrate will review any surveillance activity and block those that aren’t conducted pursuant to the law.
To treat a “written directive from the government” as a substitute for a court order is to abandon this fundamental principle. Once we accept the premise that the executive branch can “authorize” surveillance without judicial oversight, the standard of review for analyzing the resulting “written directives” is entirely beside the point. I don’t care if the Bush administration wrote letters to telecom companies “certifying” that participation in the warrantless spying programs was legal. That’s not how the law works. These are large companies with plenty of lawyers on staff who know this area of law as well as anyone in the executive branch. They could and should have done what Qwest’s former CEO says he did and told the Bush administration to come back when they had a relevant FISA warrant.
It’s a safe bet that no matter what “standard of review” is chosen, the courts will find that the companies did, indeed, act pursuant to a “certification” from the executive branch. Therefore, directing the courts to dismiss the lawsuits if the companies can produce such a “certification” is functionally no different from no‐questions‐asked immunity. It will mean no real consequences for breaking the law, and no real incentive for companies to be more careful about following the law in the future.