Friday, February 01, 2008


This afternoon, the Senate will be debating Senate Bill S.2248, FISA Amendments Act of 2007.

Title II of the bill (section 202 of which follows) is designed to give some protection to telecommunication service providers that cooperated with the Government's terrorist surveillance program.

(a) Limitations- (1) IN GENERAL- Notwithstanding any other provision of law, a covered civil action shall not lie or be maintained in a Federal or State court, and shall be promptly dismissed, if the Attorney General certifies to the court that-- (A) the assistance alleged to have been provided by the electronic communication service provider was-- (i) 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 (ii) described in a written request or directive 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 (B) the electronic communication service provider did not provide the alleged assistance. (2) REVIEW- A certification made pursuant to paragraph (1) shall be subject to review by a court for abuse of discretion. (b) Review of Certifications- 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) would harm the national security of the United States, the court shall-- (1) review such certification in camera and ex parte; and (2) limit any public disclosure concerning such certification, including any public order following such an ex parte review, to a statement that the conditions of subsection (a) have been met, without disclosing the subparagraph of subsection (a)(1) that is the basis for the certification. (c) Nondelegation- The authority and duties of the Attorney General under this section shall be performed by the Attorney General (or Acting Attorney General) or a designee in a position not lower than the Deputy Attorney General. (d) Civil Actions in State Court- A covered civil action 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. (e) Rule of Construction- Nothing in this section may be construed to limit any otherwise available immunity, privilege, or defense under any other provision of law. (f) Effective Date and Application- This section shall apply to any covered civil action that is pending on or filed after the date of enactment of this Act.

Considering the litigious nature of some groups (e.g., the ACLU), Title II must remain. Failure to do so would put an onerous burden on those that cooperated in good faith with Government requests for access to their facilities.

But, Sen. Dodd and a liberal cabal in the Senate introduced an amendment,SA 3907, the text of which follows:

Strike title II.

That's it! Three words that would open a floodgate of litigation having more to do with advancing a political agenda than preserving individual rights.

The liberal cabal? Besides Dodd, they are the usual suspects: Feingold, Leahy, Kennedy, Harkin, Wyden, Sanders, Obama, Clinton, Biden, and Kerry. Note the cabal includes two who would be President. Right...

Tag: Trackposted to Pirate's Cove, A Newt One, and The Yankee Sailor, thanks to Linkfest Haven Deluxe and OTA Weekend.

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