Congress screwed up the FISA amendment. It’s been well disclosed here by Correntian commentators.

The six-month sunset provisions - not really true. The careful crafting of limitations by the Congress - also not true.

We know that Bush/Cheney et al., seek the unitary executive, massive power grabs. In enacting the “Protect America Act”, Congress was too stupid, lazy, politically intimidated or eager to go on break to fight them.

At least we have the judicial branch of the federal government to protect us against this legislation – or do we? The language of this bill is so obnoxious as to actually make it impossible to have any review at all. Score one more for the White House.

Review By The Foreign Intelligence Surveillance Court

The standard of review for the FISC of warrants and procedures in the original FISA was “probable cause.” Gee – sounds so – I don’t know, CONSTITUTIONAL. What hell were they thinking back in 1978? A ruling for or against a warrant would be based on the standard of “arbitrary and capricious.” That is, given all the information and circumstances, if the executive branch overreached under the rules regarding probable cause, a warrant would not be approved.

In the new FISA amendment, the FISC’s review of Bush’s procedures has a much higher standard set to it. Under Section 105C:

(b) court established under section 103(a) shall assess the Government’s determination under section 105B(a)(1) that those procedures are reasonably designed to ensure that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The court’s review shall be limited to whether the Government’s determination is clearly erroneous.

(c) If the court concludes that the determination is not clearly erroneous, it shall enter an order approving the continued use of such procedures. If the court concludes that the determination is clearly erroneous, it shall issue an order directing the Government to submit new procedures within 30 days or cease any acquisitions under section 105B that are implicated by the court’s order.

So, the only way for the Bush Administration’s procedures under the FISA amendment to be struck down is if they completely screw it up. And even if they do so, what happens in the meantime?

(d) Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.

And who is it that makes these determinations – who determines what judges are on the FISC? - Appointees of former Chief Justice William Rehnquist and now Chief Justice John Roberts.

Review By Courts Of Other Jurisdiction Than The FISC

To get the FISA amendment before another court, you need a plaintiff – the plaintiff must have standing and be damaged. The options? – A “person” who has been required to provide surveillance information or a “person” who has been the subject of surveillance.

The first group of potential plaintiffs has been knocked out of the box by the very language of the amendment Section 105B(l):

Notwithstanding any other law, no cause of action shall lie in any court against any person for providing any information, facilities, or assistance in accordance with a directive under this section.

Anyone providing assistance to the government under the act cannot be sued – therefore, they have no damages. Why on earth would any corporation challenge the FISA amendment if there is no way for them to lose any money?

So we are left with that one, lone citizen aggrieved by the Executive Branch and the Congress’ complicity, to bring suit and obtain a judicial determination regarding the FISA amendment’s legality.

Who is that lone citizen? Before everyone goes nuts and says, “well, I’m a citizen and I could be wiretapped and therefore, my rights are being violated, so I can challenge this law,” be forewarned that that doesn’t cut it. A person needs to prove that they were actually wiretapped and were damaged as a result.

Under the language of the FISA amendment – no person could ever make such a preliminary showing necessary to get before a court.

Section 105B(a)(5) puts forward the documentation required to conduct surveillance under the FISA amendment:

This determination shall be in the form of a written certification, under oath, supported as appropriate by affidavit of appropriate officials in the national security field occupying positions appointed by the President, by and with the consent of the Senate, or the Head of any Agency of the Intelligence Community, unless immediate action by the Government is required and time does not permit the preparation of a certification. In such a case, the determination of the Director of National Intelligence and the Attorney General shall be reduced to a certification as soon as possible but in no event more than 72 hours after the determination is made.

Ah – so we could simply look at this written certification and find out if a potential plaintiff was wiretapped – right?

NO:

[Sec. 105B](b) A certification under subsection (a) is not required to identify the specific facilities, places, premises, or property at which the acquisition of foreign intelligence information will be directed.

Even worse:

[Sec. 105B(c)] Such certification shall be maintained under security measures established by the Chief Justice of the United States and the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed

So Bush wanted it. Congress gave him it. And our only avenue for redress has been cutoff by the very language of the Act. It’s enough to make you want to scream.