The Final Nail In The 4th Amendment's Coffin

Here it comes:

A bipartisan group of congressional negotiators neared a deal yesterday on controversial wiretapping legislation that could be unveiled as early as next week, according to Capitol Hill sources and civil liberties advocates monitoring the talks.

Lawmakers have been wrangling for months over how to extend warrantless surveillance that Bush administration officials consider central to national security. Agreement has proved elusive because of privacy concerns as well as questions about telecommunications companies seeking immunity from lawsuits over their role in helping the government monitor phone calls and e-mail after the Sept. 11, 2001, attacks [...]

A key element of the new plan would give U.S. district courts the chance to evaluate whether telecommunications companies deserve retroactive protection from lawsuits. A previous proposal floated by Republicans would have put the question to the secret FISA court that approves warrants.

CQ Politics has more. It looks to me like district courts won't be evaluating whether the telecoms broke the law, but whether they got a permission slip to do so. If the courts are only ruling on the proper filing of documents, then it's not a ruling at all. The ACLU writes:

“This FISA deal looks like the unconstitutional Senate bill in sheep’s clothing. Whatever silk purse Hoyer tries to make of Bond's sow's ear and no matter how they try to sell it, the end result of all this negotiating will be exactly what the administration has wanted from the beginning — FISA rewritten to delete court oversight of surveillance and immunity for its pals at the telephone companies.”

“From the language we’ve seen, we’re back at square one, looking at a bill just like the old Senate bill that lacks meaningful judicial involvement. The Fourth Amendment requires prior and individual court review before the government digs into our private conversations. It is clear the next vote will be on a bill that fails this test — by permitting the government to conduct mass untargeted surveillance, sometimes without prior court review, and sometimes with prior court review — and then only when the government unilaterally decides that it is willing and able to answer to the judicial branch.”

“It is also clear that the deal is intentionally designed to grant immunity to companies that facilitated illegal wiretapping. If the only role for the court — be it District or a FISA court — is to determine whether the companies received a request from the Administration, and not to determine whether those requests were legal, it’s a sham review. The president has publicly acknowledged that the companies were repeatedly sent authorizations to turn over Americans phone calls and emails. It is absolutely guaranteed that current and future cases will never determine whether this administration and its friends in the telecom industry broke the law.”

A travesty. A lot of people are wondering what Steny Hoyer's game is - is it the telecom money, is he trying to hide the conduct of his colleagues who failed to raise objections after being informed about illegal spying, is he afraid of Republicans beating him up as in league with the terrorists. Actually, I just think it's who he is. He has an arrogant belief that Americans don't deserve the kind of privacy protections they've historically been afforded, and that their Washington minders know best. The money is helpful, the GOP bashing makes him fearful, but ultimately, that's what it comes down to.