As kpete posted today, http://journals.democraticunderground.com/... spying on U.S. Citizens that was warrantless and bypassing FISA, started before 9/11. That means the NSA started their program before the first post-9/11 FISA Amendment, the Patriot Act, and the following FISA Amendment, the Protect America Act, which granted broad, domestic spying powers to the Administration. The PAA has expired and that is why there is such a push to pass the current FISA Amendment of 2008. However, this Amendment adds several beneficial accountability clauses and removes several broad power clauses from the PAA.

But the large controversy about the current FISA bill has been its granting of retroactive immunity for U.S. Telecom companies against civil (not criminal) lawsuits. The controversy is heightened with the fact that Senator Obama said he would oppose retroactive immunity against illegal activities and that he currently supports the current FISA Amendment, admitting that he feels it is a necessary compromise. The left side of the blogosphere, including many here at Democratic Underground, have seemed zealous in their attacks on Obama for this. But let's consider what the law truly states.

The full text of the Amendment can be found here (PDF format): http://www.politico.com/static/PPM104_0806...

First, it does grant retroactive immunity for telecoms. Title II of the Amendment modifies Title VIII of FISA to include immunity for telecom companies against civil actions if the telecom company acted in a certified manner. The obvious question that follows is, what certification is required? Sec. 802 of the Amendment answers this question (starting on page 88 of the PDF document linked above). There are 5 protective clauses that allow a telecom to avoid defending against a civil action, as listed below (I'll list out of order to cover the easy ones first):

1. Providing assistance to the NSA was authorized by a court order (FISA court) (which the pre-911 doesn't qualify)

4. The monitoring occurred between Sept. 11, 2001 and Jan 17, 2007 (which the pre-911 spying didn't)

5. The company didn't provide the assistance (not true for AT&T or Verizon in this case)

3. This one's tricky, as it pulls in language from the PAA. Here is the text it pulls in from PAA, section 105B(e)

This means the Director of NI and the AG must authorize the spying and the telecoms in question must have such an order in writing. The funny thing about this, is that there was no such thing as the Director of National Intelligence before 9/11. That branch of government was formed in April of 2005. (this clause does not apply to telecoms spying before 9/11)

And finally, protective clause 2:
2. This clause refers to a section of the current FISA bill that allows individuals (or telecoms) to hand over requested information if the AG certifies it as an emergency and there are grounds for a court order. Under the original FISA, this meant that the AG had up to 3 days to file for the court order or the evidence was invalid. The current amendment extends that to a week given the load on the FISA court. It doesn't matter, as the protection against a civil suit would require that the AG certified it in writing then and had applied for the court order.

Now, I'm not a lawyer, so I'll leave the final interpretation up to the lawmakers and the courts. However, it seems pretty clear to me that the immunity against civil action, granted by this Amendment that has stirred up so much controversy is pretty narrowly defined. The aiding telecoms must have a court order or a get-out-of-lawsuit-free card with severely limited circumstances that can be reviewed by the court presiding over one of these pending 40 civil cases. The FISA bill does not protect companies (or government officials for that matter) against criminal abuse of the FISA law, and it seem pretty clear from kpete's post this morning, that the pre-911 solidly falls in that category.

Obama called it a bill that he would not author but reluctantly agrees to out of necessary compromise. However, the compromise seems in line with Obama's original pledge. No retroactive immunity for telecoms who engaged in illegal spying.

ON EDIT: to those who think the AG will certify pre-9/11 domestic spying, I doubt Ashcroft will be signing any such papers. Ashcroft deemed it illegal once he found out about. It's the reason he resigned. See my response here below: http://www.democraticunderground.com/discu...