Congress Comes To Agreement On Revised FISA

This is sure to chafe the leftists and left-wing Democrats, but a deal has been struck to revise the FISA surveillance law. It's not a perfect law by any stretch, but not for the reasons that the left complains.

The big problem that has prevented passage related to telecommunications company immunity. Some 40 lawsuits have been initiated against those companies, and this law has to deal with that instance.

Democrats refused to give the companies immunity despite their critical assistance in enabling the US to listen in on enemy communications into the US from foreign countries. Republicans wanted to give such companies immunity since they were doing so in the best interests of the nation.

So, what is the provision at issue? This:

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...the assistance alleged to have been provided by the electronic communication service provider was in connection with an intelligence activity involving communications that was authorized by the President during the period beginning on September 11, 2001, and ending on January 17, 2007.

Well, here's what will probably happen. Leftists will wail and seethe, but they will be able to sue the telecoms. The Attorney General, however, gets the right to essentially waive those actions and bring an end to such suits. All the AG has to do is certify to the court where the action is pending that the surveillance was done subject to the authority of the President in the period at question.

That is a whole lot of power in the hands of the AG, but that's where it's headed. It also reinforces the importance of winning elections since whoever becomes President nominates the Attorney General, and will have the final say on whether such suits will be brought forth.

Those lawsuits may persist in the courts for some time to come, which means the next President will have some influence over the outcome today.

Not an ideal situation to say the least since it becomes a political one rather than a straight legal one (you've either given them immunity or not).

UPDATE:
Here's the full text of the changes at issue for immunity purposes under Section 802:

`(a) Intervention by Government- In any covered civil action, the court shall permit the Government to intervene. Whether or not the Government intervenes in the civil action, the Attorney General may submit any information in any form the Attorney General determines is appropriate and the court shall consider all such submissions.

`(b) Factual and Legal Determinations- In any covered civil action, any party may submit to the court evidence, briefs, arguments, or other information on any matter with respect to which a privilege based on state secrets is asserted. The court shall review any such submission in accordance with the procedures set forth in section 106(f) and may, based on the review, make any appropriate determination of fact or law. The court may, on motion of the Attorney General, take any additional actions the court deems necessary to protect classified information. The court may, to the extent practicable and consistent with national security, request that any party present briefs and arguments on any legal question the court determines is raised by such a submission even if that party does not have full access to the submission. The court shall consider whether the employment of a special master or an expert witness, or both, would facilitate proceedings under this section.

`(c) Location of Review- The court may conduct the review in a location and facility specified by the Attorney General as necessary to ensure security.

`(d) Removal- 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) Special Rule for Certain Cases- For any covered civil action alleging that a person provided assistance to an element of the intelligence community pursuant to a request or directive during the period from September 11, 2001 through January 17, 2007, the Attorney General shall provide to the court any request or directive related to the allegations under the procedures set forth in subsection (b).

`(f) Applicability- This section shall apply to a civil action pending on or filed after the date of the enactment of this Act.'.

UPDATE:
Hot Air wonders how much data was lost due to Congress dithering over the act despite bipartisan support and Senate support for telecom immunity. Good question, and one that we hope isn't answered