fisa/telco amnesty - the race to erase the past

There are a few prescient observations today on the never say die FISA bill and why it is detrimental not only to your privacy and the 4th amendment but our legal system as a whole. The entire bill looks and feels so Soviet that it depresses the hell out of me. If this passes, America becomes are very different kind of place. The enormous unchecked power acquired will have bad consequences for a lot of innocent people.

Firedoglake:

In short, the bill outlines a crazy process where the Attorney General will give secret information to the judge sitting on a pending telco case. The information will mostly consist of the AG certifying that the previous certifications by prior AGs were legal, and if the judge dismisses that case on the basis of this or other information given to him in secret by the AG, the judge cannot talk about it in his opinion (I suppose other than to say he is basing his decision on secret info from the AG).

So, if the judge made a mistake of fact in reaching his decision, no appeal because the plaintiffs won't know what that fact is. If the judge made a mistake in his analysis of the application of the law to the facts, no appeal because the plaintiffs don't know what that analysis is.

Further, no stare decisis, no using the decision in an earlier telco case to help figure out a later case. For a legal system built around case law precedents, this is a sea change. It could make briefwriters like me obsolete.

Telcom immunity means we will never find out what happened in the PAST. OK, that's bad. Cases that can't be used as precedent can, over a long period of time, erode the legal system as we know it. That's bad, too.

But changing the definition of who can be surveilled under a basket warrant to remove any requirement that the surveillance subject be a spy or a terroist or any kind of bad guy--that's way beyond bad.

David Kris /Balkinization:

It is interesting to compare the pending legislation to the TSP as it may have been implemented just prior to, and just after, the January 2007 FISA Court orders. There appear to be two main differences. First, the pending legislation applies only to targets located abroad, while the January 2007 orders may have allowed surveillance of targets in the U.S. (as long as they were making international calls). Second, more importantly, the pending legislation focuses only on the target’s location (or the government’s reasonable belief about his location) not his status or conduct as a terrorist or agent of a foreign power. In other words, there is no requirement that anyone – the FISA Court or the NSA – find probable cause that the target is a terrorist or a spy before (or after) commencing surveillance. [David Kris Post one and Post two - required reading]

Call your senators if you haven't already.