The provision that some allege provides immunity actually provides "statutory defenses". A lawsuit is initiated when the plaintiff(s) file a complaint alleging the tort(s) and setting forth the facts as they know them. The defendant(s) are then required to answer the complaint. An answer is comprised of denials and defenses. Rule 12 provides a list of potential defenses that a defendant can rely on. There are other statutory defenses available, depending on the identity of the defendant. If a government defendant is sued you will always find the doctrine of sovereign immunity raised or used as a defense to the action. Raising a defense does not automatically dismiss the action. The defenses have to be substantiated, have to be proven.
Take sovereign immunity, that is a government agent cannot be held liable for his actions if they were within the scope of his employment with the government and if they were lawful. Cops claim sovereign immunity when they are sued for beating some one up. If they successfully prove they were defending themselves and following regulations and procedures and the law then the immunity applies. If they were malicious and beat the bad guy up for the sake of it or if they used excessive force and violated the procedures and if they violated the rights of the bad guy they can't rely on the immunity.
Now with the FISA legislation, it does provide the following:
‘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--
‘(1) any assistance by that person was provided pursuant to an order of the court established under section 103(a) directing such assistance;
‘(2) any assistance by that person was provided pursuant to a certification in writing under section 2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
‘(3) any assistance by that person was provided pursuant to a directive under section 102(a)(4), 105B(e), as added by section 2 of the Protect America Act of 2007 (Public Law 110-55), or 702(h) directing such assistance;
‘(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; or
‘(5) the person did not provide the alleged assistance.
So, if as Feingold has said, it is known that the president broke the law, then the certification will not survive the review of the trial court as the action had to have been lawful. If the monitoring was had of US citizens' communications without probable cause and/or a lawful warrant or order issued authorizing same based upon that probable cause it was not lawful as it violated the 4th amendment.
Also, if it is true that the monitoring began prior to 9/11, then the statutory defenses are not available to the telecoms as before 9/11 is not a covered time period.
The trial court, either on it's own or upon the request of either party gets to review the AG's statutory defense certification and has to make a finding that the certification is supported by substantial evidence.
‘(b) Judicial Review-
‘(1) REVIEW OF CERTIFICATIONS- A certification under subsection (a) shall be given effect unless the court finds that such certification is not supported by substantial evidence provided to the court pursuant to this section.
‘(2) SUPPLEMENTAL MATERIALS- In its review of a certification under subsection (a), the court may examine the court order, certification, written request, or directive described in subsection (a) and any relevant court order, certification, written request, or directive submitted pursuant to subsection (d).
Feingold will likely be called as a witness and/or all of his floor speeches and public comments will be used by the plaintiffs to set aside the certification to allow the litigation to proceed.
FEINGOLD: "It Could Not Be Clearer...This President BROKE THE LAW"
"...it could not be clearer that this program broke the law, and this President broke the law. Not only that, but this administration affirmatively misled Congress and the American people about it for years before it finally became public."
...
"I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure."
http://www.huffingtonpost.com/howie-klein/... And if the trial court does dismiss the litigation based upon the SD certification then the plaintiffs have the right to appeal and challenge the certification and have the findings of the trial court reviewed.
It should be noted that the legislation allows the trial court to review classified information when making a determination. They can't hide behind "states secrets".
I hope this makes sense.
