I know that everyone should have FISA OVERLOAD by now. I know I do. But I really what everyone to read my interpretation of New Executive Power as outlined below.
It is a quick read and I think we need this discussion. It will help in the future as we attempt to fight for our 4th Amendment rights.
Many have blindly believed the FISA bill is a bad bill, an unconstitutional bill. I did. But yesterday, I set out to read the new FISA bill, for myself, to see if these claims were actually substantiated. Here are my thoughts.
Special thanks to Seneca Doane and her/his diary http://www.dailykos.com/...
The bill is badly written, imo. I believe that under the current (declared and stated) theory of the "Unitary Executive" that this administration has put forth and operates under, the bill, as written, does not formally state that the "warrantless wire-tapping program" that we set out to quell is outside of the presidents powers to conduct.
My support for this statement is the new FISA law, {Section 802(a)(4)(B)(i)(ii)}, that reads as such: "Bold text", and "italic" are my highlighted sections and my emphasis respectively.
‘‘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
...
‘‘(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;
.
{Section 802(a)(4)(A)(i)(ii)} deals with immunity, where as, (B)(i)(ii) deals with future policy and standard operating procedure!
I believe under conditions that are at the discretion of the Executive Branch the Judicial Branch can be taken out of the domestic spying process for, not only, past surveillance (telecom immunity) but for all future spying.
.
Update: Some could argue that Section 802 only refers to civil action! I can concede that have this arguement stand, modified like this: The Judicial Branch, at the discretion of the Executive Branch, can be lawfully prevented from being the only personal avenue a citizen can take against infringement of his or her 4th Amendment rights against warrantless searches and seizures without probable cause.