Just one more reason why I left the worthless democratic party they all are closet Bush supporters.

All I see are Republicans.

Just a few thoughts in response to a few commenters regarding whether Congress can actually do what they're proposing here, i.e., retroactively grant immunity. Probably, yes. Whether you have a right to sue in court is a matter that is for the legislature (or created by courts under common law). What the legislature giveth, it can generally taketh away. Moreover, while there are specific prohibitions in the constitution about certain types of retrospective legislation (e.g., ex post facto laws), and while there's a presumption against reading legislation to operate retrospectively, it is nevertheless normally within Congress' power to enact legislation relating to civil causes of action and have it operate retrospectively, providing they clearly indicate such an intent. This draft bill is probably sufficient.

That probably means that, as to any federal right of action, this law would be constitutional. Not as clear to me where Congress gets the power in this instance to wipe out any state-law causes of action that might exist (e.g., for violation of state-constitution analogs of the 4th amendment), but I suspect that the commerce power or some power relating to national security would be found to be sufficient.

And I don't really see a separation-of-powers issue here as to the immunity: Congress is specifying the parameters of a defense to liability, not telling the courts whether that defense has been satisfied. This is pretty routine stuff in that regard.

What does, to me, raise an interesting separation of powers issue is the provision Glenn highlights in update II, namely, the provision that the court can't specify its reasons for ruling on the immunity. That does strike me as an illegitimate encroachment on the courts' power to adjudicate, although I admit to having never looked at that issue.

This proposed FISA "compromise" is every bit as evil as it seems. The little internal discussion that's been going on here about the "lawful orders" concept, though, emphasizes one very clear point: the proposed amendment does not require the President's order to have been "lawful", which would open the door to having to litigate the lawfulness of the order in court. All that the bill requires to immunize those who followed the order was that they were told by the Administration that the order was lawful. Big difference, obviously. Still dizzyingly absurd, to be sure, but what this represents is a determination that "as a matter of law" a person ordered by the Government acts in "good faith" by following the order.

This is, as GG and everyone else recognizes, utterly astonishing from the perspective of the sources and history of American law. But it's hardly surprising from a practical perspective, since that has plainly been the intent of Bush and his advisors all along. This goal was plainly articulated by Woolsey (the same guy now advising McCain) back in November, as was discussed here in February:

"I bring to your attention a November 2007 op-ed former CIA director (and current Booz Allen guy) Woolsey, who wrote to the LA Times to defend the Bush Administration's call for telecom immunity for prior complicity in felonious eavesdropping with this reassuring rationale. Arguing that it will facilitate future actions by government contractors that are illegal but have been "requested" by someone in the government, Woolsey sublimely states:

'we and our children will be better off if the official can answer the question 'Can you guarantee that my company won't be sued if we help the country?' with 'If it happens, we'll get protective legislation approved as in 2007'.'

I can't imagine a more chilling justification for retroactive immunity under FISA: this guy actually argues that we should feel more secure knowing that we would be creating a precedent for future unlawful conspiracies between government bureaucrats and corporate institutions. Sure made me sleep better at night having read this."

That, in a nutshell, is what today's proposed amendment would do.

The "out" that is left available by this FISA amendment is impeachment. Set aside Pelosi for a minute, and it's clear that's true: by allowing the "citizen" to accept the President's representation that the activity will be legal, but not be expressly legislating that the President's assertion is in fact correct and the Congress is hereby retroactively deeming the President's assertion to have been correct, it necessarily and logically follows that if the President was wrong, lying or deceitful, consequences can follow to the President, even if not to those now to be deemed to have accepted his word "in good faith."

If this FISA amendment is to pass, shouldn't everybody be raising holy hell to insist upon the remedy of impeachment that the Constitution provides, this bill plainly preserves in the circumstances, and the pending Articles of Impeachment (Article 24 and 25) already encompass?

I'm just sayin'. WTF.

I wrote about it a lot at the time. Rove's plan in September 2006 was to make Congress vote on a torture bill and a FISA bill and then run on Democratic weakeness to Terrorism (even though Democrats weren't going to stand in the way of either bill).

They got the torture bill passed (Military Commissions Act) but only the House voted to legalize warrantless eavsdropping; the Senate never did. And even people like Heather Wilson were balking at some provisions that the White House wanted, so it didn't include everything they wanted, including amnesty.

-- GlennGreenwald

It's still a stunning observation. It can't be denied or rationalized away. I have been rather pessimistic about all this. On the other hand, you have let them know they are being watched closely and lifted the curtain a bit to let us peak at the wheels turning in the machine. This will have a positive net effect. As you know, I'm in full agreement with those who commend you for what you do.

Tempus,

I know how you feel. Out of respect for Glenn and all he does, please don't vote for McCain. That would make him very sad.