Amended FISA bill passed House, telco immunity left in

It appears likely that individuals believing their rights were violated by ISPs during anti-terrorism investigations, will not have much recourse against them after a sweeping House vote Friday that galvanized Republicans and split Democrats.

By a vote Friday afternoon of 293-129, with 13 not voting (including one-time Republican presidential candidate Ron Paul), new compromise legislation passed the US House of Representatives that would restrict the government's ability to conduct warrantless wiretaps on "non-United States persons" in the future. However, the means for those involved in such operations since 9/11/2001 to obtain legal immunity remains in the bill, thereby increasing its chances of being signed by President Bush should the Senate also pass the bill.

As the draft of HR 6304, the FISA Amendments Act of 2008, that passed Friday, now reads, "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 can prove in US District Court that this "person" was instructed to assist -- including by the President -- was given assurances that such assistance was lawful, that the assistance directly pertained to anti-terrorist efforts, and that the assistance itself was indeed lawful.

All these things would be determined by the court, though the Attorney General (representing the Justice Dept.) would have the right to petition the court that the hearing of such evidence on the "person's" behalf may jeopardize the national security if it were to be shared openly. In which case, the court itself may become limited as to how much it can say, even in its own findings. It can, of course, issue a quick dismissal without unduly jeopardizing security.

"This is not the bill I would have written, in an ideal world," stated House Majority Leader Steny Hoyer (D - Md.) on the House floor on Friday. "However, in our legislative process, no one gets everything he or she wants. Different parties - often with deeply competing interests - come together here to produce a consensus product, where each side gives and takes."

Rep. Hoyer pushed for the bill's passage over the objections of many in his own party As it turned out, the ayes and nays were split among Democrats. That split was even reflected among the current membership of the House Judiciary Committee, whose opinion on the proper role of FISA courts does carry some weight. Democrats on that committee who voted nay included committee chairman John Conyers (D - Mich.), Jerrold Nadler (D - N.Y.), Robert Scott (D - Va.), Melvin Watt (D - N.C.), Zoe Lofgren (D - Calif.), Sheila Jackson-Lee (D - Tex.), Maxine Waters (D - Calif.), William Delahunt (D - Mass.), Robert Wexler (D - Fla.), Linda Sanchez (D - Calif.), Steve Cohen (D - Tenn.), Henry Johnson (D - Ga.), Betty Sutton (D - Ohio), Tammy Baldwin (D - Wisc.), Anthony Weiner (D - N.Y.), Debbie Wasserman Schultz (D - Fla.), and Keith Ellison (D - Minn.).

Committee members voting aye included senior member Howard Berman (D - Calif.), Frederick Boucher (D - Va.), Luis Gutierrez (D - Ill.), Brad Sherman (D - Calif.), Adam Schiff (D - Calif.), and Artur Davis (D - Ala.).

Only a single Republican in the House voted against the bill: Rep. Timothy Johnson (R - Ill.), most likely in continuation of his opposition to the principle that any restrictions be placed on anti-terrorist investigations whatsoever.

In his opposition to a similar bill last March, Rep. Johnson stated on the House floor, which did pass but was not signed into law, "Electronic surveillance is one of the strongest weapons in our arsenal. The real enemy is al Qaeda and Islamic terrorism, not our own government working so hard to protect us...Today's bill, the RESTORE Act, marks an undeniable retreat in the war against Islamic terrorism. It limits the type of foreign intelligence information that may be acquired and actually gives foreign targets more protections than Americans get in criminal cases here at home."

The language in Section 802 of the bill deals specifically with an individual's right to sue a "person," claiming his rights may have been violated by that "person" during an anti-terrorism investigation. But in Section 803, which deals with keeping states out of the business of questioning the legality of investigations against their citizens, the language becomes more transparent, referring directly to Internet service providers.

"In General -- No State shall have authority to...conduct an investigation into an electronic communication service provider's alleged assistance to an element of the intelligence community," HR 6304 now reads. It adds that states may not require ISPs to divulge information about any investigations they may be conducting, or assistance they may be providing.

From here, the bill has already begun its journey in the Senate, having been placed on the legislative calendar there. Action on this bill may be unusually swift. There has been no official comment from the White House as of Monday morning, though that may change by the afternoon.