The point is – as I made earlier – the power of the purse is an indirect power over the Executive Branch, it does not grant FURTHER rights over executive branch officials beyond what they may spend. The fact that executive branch officials may nonetheless adjust their behavior because they want a favorable exercise of the spending power is not inconsistent with the proper understanding of the Separation of Powers – influence is not oversight. While Congress will be influenced by Supreme Court holdings and may tailor legislation to avoid future findings of unconstitutionality, I hope you would not say that the judiciary has “oversight” over the legislative branch.

I believe the basis is what Justice Scalia has called “the basic rule of life”: “He who pays the piper calls the tune.”

I don’t think the lawsuits will ever go anywhere under the states secrets doctrine; you never even get to the application of the statute. So the question becomes why not let the lawsuits get defeated under the state secrets doctrine as compared to by legislation. I don’t have strong feelings about that one, as they lead to the same result either way.

Suppose you’re right, and the exceptions apply. Why not just let the cases proceed? They’ll be dismissed pursuant to the exception, and there is no need for retroactive immunity, right?

Second, 2511(2)(a)(ii) allows telecommunications companies to disclose if they are provided with a court order signed by a judge (which they weren’t) or with “a certification in writing that a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.” Did this happen? I’m not sure if this was followed. Isn’t this a factual question for the courts to determine?

If it was, then AT&T can present facts to this effect. Just present the certification to the court, right? Why is retroactive immunity needed?

I see no reason why the courts can’t handle this issue and why retroactive immunity is necessary. If it’s all that easy, and 18 U.S.C. 2511(2)(a)(ii) applies, then why all the litigation over the state secrets doctrine? Why all the fuss over retroactive immunity?

So maybe you’re right, and everybody — the government, the telecommunications companies, the courts, and Congress — are missing something, namely 18 U.S.C. 2511(2)(a)(ii). If so, then immunity already exists in the statute, and there’s no need to do anything. But that’s certainly not how everybody’s acting. Why not?

Also, other statutes and constitutional rights are involved in the case, not just FISA.

Dan, didn’t Congress also write exceptions into the law permitting disclosure in some circumstances? And given that, can you explain why you appear to believe that those circumstances did not exist here? I’m particularly interested in your take on 18 U.S.C. 2511(2)(a)(ii).

(No relation to Donald Kerr, BTW.)

1) There is some con law/fed courts stuff out there on whether congress can actually decide an ongoing court case like this. isn’t there a separation of powers issue here?

But i admit that in a case involving an antitrust suit by medical residents a few years ago, Congress just summarily ended the case by passing some bill that said something like “no activities from the time period of 19XX to the filing of the case can be used as evidence of anti-competitive conduct.” I think this case is described in Kristin Madison’s article on residency matching.

2) GG has further critique of Feinstein:

http://www.salon.com/opinion/greenwald/2007/11/10/feinstein/index.html

But since I am not a lawyer, and you are, could you comment, perhaps, on an issue I raised in my blog entry: under our Constitution, can Congress retroactively strip me of civil recourse for breach of contract?

Not that they care, but I’m an AT&T customer, and I didn’t give AT&T any permission to turn over my communications to the NSA (if they did), in breach of their privacy policy and contract with me. Nor do I grant Congress my permission to give AT&T a “get out of jail free” pass. And most importantly, I do not give Congress my permission to waive my Fourth Amendment rights. The whole “national security” defense doesn’t quite fly when you remember that the administration approached the telecoms with the warrantless surveillance program as early as February 2001.

This Congress has totally abdicated its responsibilities and caved in to both the executive branch and corporate America.