The Next PR Blitz You’ll Want to Miss

Hooray for Democracy!  Democratic Senator’s have introduced a bill that would repeal telecom immunity from civil suits for their part of Bush’s warrantless wiretapping.  

Four Democratic senators have introduced a bill that would, if passed, repeal the legal immunity afforded the telecommunications industry for their participation in President George W. Bush’s warrantless wiretapping program.

Senators Chris Dodd (D-CT), Patrick Leahy (D-VT), Russ Feingold (D-WI), and Jeff Merkley (D-OR) announced the measure Monday. In a release, they said the bill “eliminates retroactive immunity for telecommunications companies that allegedly participated in President Bush’s warrantless wiretapping program.”

The four senators, all liberal Democrats, emphasized that they believed granting the industry immunity violated the law and due process.

Don’t jump for joy.  Don’t break out the champagne.  This is the next PR blitz of, “Hey, look what we did“, you want to miss because it means absolutely NOTHING…

H.R. 6304, Sec 802

‘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.

Hold on… no popcorn for you… wait for it…

Why is this attempted repeal going nowhere fast?  Because the provision was `pre-emtped`.

‘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.

So, right there, we have TWO parts of this amendment; civil cases MUST be dismissed, and, cases can ONLY be brought at the FEDERAL level.  The case will be, and has been, dismissed.

A federal judge on Wednesday upheld an immunity law for telecommunications companies and dismissed dozens of lawsuits by customers who accused AT&T and other carriers of collaborating in illegal government wiretapping.

Even IF these two provisions, among the rest, were repealed, there is still the last hurdle.

This motion is made on the grounds that plaintiffs’ Fifth Amendment takings claim (Count 1) is meritless because plaintiffs do not hold a vested property right in their pending, unadjudicated claims against the carrier defendants and this Court lacks jurisdiction to adjudicate the claim; that Plaintiffs’ separation of powers claim (Count 2) fails because § 802 permissibly amended the legal standard underlying the lawsuits brought against the carriers; and that Plaintiffs’ due process claim (Count 3) must be dismissed because the retroactive application of § 802(a) to pending cases is constitutionally permissible. And, in addition to these arguments made by the Government and in prior briefing in this case, this motion is based on the argument that even if plaintiffs’ claims did not fail in their entirety on the merits, their claims against the carriers must be dismissed because the carriers are not proper defendants in this action. The carriers are private entities that are not alleged to have taken any relevant action with respect to the passage and application of § 802, much less state action that would implicate constitutional concerns. For similar reasons plaintiffs have no standing to sue the carrier defendants, because the carriers did not cause any harm, and relief against them could not redress any supposed harm.

Now, highlighted is the precedent finding that makes this repeal utter trash.  Translated:  You have no standing because there was no harm done.  Repealing this provision doesn’t change it.  All it means is that cases can be brought, in the correct court, to which the case will be summarily dismissed for lack of standing and lack of harm.

The ONLY way to fix this would be to write a bill that not only repeals these measures, but, also adds in it language detailing out:

– that everyone has standing to sue based on the fact that the information is classified, and thus, onus shifts to the government to prove that the person has no standing.

– to specify that once standing has been established, damage is defined as whatever it takes to make it stand.

Only with three items together can you jump up and down, uncork the champagne, or whatever.

Till then, go back and read my last essay. 🙂