This is the quote that Attytood obtained from Senator Obama:

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing betyween really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

Section 802 of HR 6304 provides telecom immunity from civil actions if the Attorney General certifies to the court certain facts, including the following statements, which may be interpreted by courts in the future as providing immunity to Bush:

(1) The telecom assistance involved intelligence activity communications "authorized" by Bush during 9/11/01-1/17/2007.

(2) The AG or an intelligence community official issued a written request or directive to the telecom "indicating" that the activity was "authorized by the President; and determined to be lawful."

Two key components of Bush's unitary executive theory is that his presidential powers include the "authority" to authorize actions by Executive Orders even when these actions violate existing laws; and, it is the executive, not the courts, which determines the lawfulness of actions. Coincidentally, these two key concepts are also key components of telecom immunity, and are phrased in a manner to have more relevance to establishing immunity for Bush than to providing a good faith rationale for telecom immunity.

Lawmakers have stated that HR 6304 does not address the legality of Bush's domestic spying programs, but merely establishes that the telecoms acted in good faith and thus should be provided immunity.  However, this bill does not mention good faith or the state of mind of the telecoms. This bill could easily have stated, for example, the following:  "If the AG or intelligence community official indicated in a written directive to the telecom that the activity was ordered by President Bush, then it will be presumed in this instance that the telecom participated in the activity with a good faith belief that the President was acting in accordance with the law."  In other words, there is no need to include in the certification any mention of Bush having "authority" or that his spying program(s) were determined to be lawful if the only purpose of this certification is to establish a good faith rationale for providing immunity to telecoms.  

How might a court analyze these two statements to determine whether they should be interpreted as approving the legality of Bush's spying program(s) and immunizing Bush or merely reciting good faith grounds to provide telecoms with immunity?  Essentially this is a question of whether these statements should be interpreted as meaning the truth of the matter asserted (i.e., Bush had "authority" to authorize the intelligence programs, which were determined to be lawful) or were the statements included in the law for other reasons, such as merely establishing a good faith rationale for telecom immunity.

A good analogy to analyzing this issue is the hearsay rules which distinguish between witness statements offered to prove the truth of the matter asserted versus those statements offered to prove other issues. Courts don't allow hearsay, or statements not based on your own direct knowledge, to prove the truth of the matter asserted as evidence in court. So, if a witness testifies that "Mary told me that the defendant Sam robbed the bank," this statement would not be admissible to prove the truth of the matter asserted that the defendant Sam robbed the bank.  However, hearsay evidence is admissible to prove a number of other facts when the statement is not offered to prove the truth of the matter asserted. So, if a witness testifies that "Mary told me she was the pope," this may be admissible at a competency hearing because the statement is not offered to prove that Mary is the pope, but rather her state of mind.

Using this hearsay analogy in the context of this FISA bill, the question is whether these two statements are included in this bill to prove the truth of the matter asserted (i.e., that Bush had "authority" to order the domestic spying program which was determined to be lawful) or were the statements included for other purposes, such as providing a good faith rationale for telecom immunity.

The scales tip toward interpreting these two statements as providing Bush with immunity and codifying his unitary executive theory while also serving the sham purpose of providing telecom immunity:

First, it should be noted that Senator Feingold has clearly explained numerous times that there is no need for telecom immunity, which is currently provided by existing law. Therefore, there is some other purpose served by providing telecoms with redundant immunity.

Second, in order to qualify for telecom immunity, the AG must certify statement #1:  That the telecom assistance involved intelligence activity communications "authorized" by Bush during 9/11/01-1/17/2007.  It should be noted that this statement #1 is not information provided to the telecoms in order to qualify for immunity, but rather is an element of the nature and scope of assistance provided by telecoms.  As such, it is a recitation of fact that the AG must attest as true as part of the certification process. There is no need to address Bush's "authority" when discussing the scope or time period of intelligence activity covered by this immunity.  The bill could easily describe the scope by saying intelligence activity communications conducted during 9/11/01-1/17/2007.  By stating that the communications were "authorized" by Bush, it is presumed that Bush had "authority" to "authorize" the communications, which is not true unless one adheres to unitary executive theory. Thus, this statement could be interpreted as meaning the truth of the matter asserted (i.e., Bush had authority to authorize the domestic spying program) rather than some other purpose, such as obtaining telecom participation.

Third, certify generally means to attest, declare or provide on oath that the facts are correct, true or affirmed in one's official capacity. The AG needs to attest to the truth of these facts contained in statements #1 and #2.   However, Bush did not have "authority" to unilaterally authorize his domestic spying program(s). Moreover, Bush admitted when the story first broke that he had violated the law by not following FISA procedures, which is a criminal offense, and thus his actions were not lawful.  Thus, the only way that the AG can attest truthfully to the court that Bush had "authority" for these spying program(s) is if Bush has unitary executive powers that transcend federal laws, such as FISA.  By passing this law, Congress will be agreeing with this statement that Bush had "authority" to approve or order the domestic spying during those years contrary to the mandates of FISA.  When Congress states such an agreement in a law, it is called ratification, which is a doctrine that backdates the Congressional approval to the time when Bush acted so that his actions will be deemed "legal" now even though he actually violated FISA at the time he issued EOs.  In other words, it will provide Bush with immunity because Bush can not be criminally prosecuted when he leaves office if his actions are now deemed lawful.

Fourth, using the hearsay analogy, essentially the lawmakers are saying that statement #2 is not included in the law to prove the truth of the matter asserted:  That the spying was "authorized by the President; and determined to be lawful." Rather, statement #2 is included to limit immunity to those telecoms who believed that their participation was authorized and lawful because the government made such claims.  And, it could be argued that when the AG certifies #2 that he is not certifying that Bush had authority or that the programs were lawful, but simply attesting that telecoms were told that Bush had authority and the program was lawful.

The question then is to what extent is the substantive content of statement #2 crucial to telecom immunity?  We can test this by asking why this bill did not just state that the government had told the telecoms that they must participate in this domestic spying program(s) because Mary had a little lamb.  This example sounds absurd, but the point is that the substantive content of what the government told the telecoms is important to determine whether the statement is included in the bill as a good faith rationale or for some other purpose, such as immunity for Bush.  If statement #2 was truly intended solely to establish good faith by the telecoms, why is there no language expressly declaring the requisite state of mind or good faith rationale by telecoms participating in the domestic spying.  One can imply that the telecoms must have had good faith if they were told the program was authorized and legal, but other implications are equally valid.  Moreover, if Bush had "authority" and his domestic spying programs were lawful, why did the telecoms not qualify for immunity under existing law?  Instead of clearly and unequivocally stating a good faith rationale for the telecoms, statement #2 uses words referencing the legality of Bush's actions.

How can the AG truthfully attest to statements #1 and #2?  This reminds me of Bush's pronouncements that the US does not torture prisoners. In a twisted way, Bush was speaking "his truth." Bush has a very narrow interpretation and definition of torture, so when he spoke, using his own bubble worldview, he probably considered his statement "truthful."  However, torture is defined by international and domestic laws, not Bush, and therefore he was lying.  

Here, the AG can similarly "truthfully" attest that Bush had "authority" to issue orders directing domestic spying program(s) and that the programs were lawful because this administration has written reams of memos with twisted theories of unitary executive powers that trump federal laws.  While it is once again a minority position, this administration often walks into court spouting its bubble worldview, which sometimes is correctly rejected by the courts as contrary to law.

But, now, it is no longer just Bush and his sycophants whipping out theories of unitary executive powers. Now, we will have a federal law where Congress issues a statement of fact that Bush had "authority" and "lawfulness." Such a statement is known as Congressional ratification, which means Congressional acquiescence or confirmation that Bush did indeed have "authority" and "lawfulness." The legal effect of Congressional ratification is to transform Bush's prior illegal, unauthorized actions into legal actions. In other words, Bush would be provided immunity from criminal prosecution after he leaves office because his actions will no longer be illegal.

This is why the FISA bill may provide Bush with retroactive immunity and legalizes most, if not all, of his illegal spying program(s). We can't know how much of Bush's program(s) would be legalized because the existence of programs is not public knowledge.  

My theory of retroactive immunity for Bush and codification of his unitary executive theory is supported by what little information has been disclosed to the public:

1.  When The New York Times broke the story in 2005 about Bush's illegal domestic spying, it was revealed that in 2002 Bush secretly authorized the NSA to eavesdrop and monitor international telephone calls and e-mails on Americans without compliance with FISA by signing an Executive Order (EO). In 2002, the Justice Dept. lawyers revealed that it was the unitary theory which vested Bush with authority for warrantless wiretaps in national security cases in a "little-noticed brief in an unrelated court case." In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

2.  Sen. Whitehouse raised the red flag that classified documents revealed that Bush's legal justification for warrantless domestic spying advocated a "legal doctrine for presidential lawbreaking."  Sen. Dodd argued that Bush should allow all Senators to read the documents before voting on telecom amnesty. Sen. Whitehouse obtained the declassification of 3 principles contained in the classified legal opinions issued by the Office of Legal Counsel within the Justice Dept.:  Principle two is essentially a longer version of the statements contained in this FISA bill:

One: An executive order cannot limit a President.  There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.  Rather than violate an executive order, the President has instead modified or waived it.

Two:  The President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II.

Three: The Department of Justice is bound by the President's legal determinations.

 3.  The Bush Team has been advocating that any FISA "reform" must "codify" Bush's presidential authority ever since the existence of these spying program(s) was revealed in 2005.  In 2006, Perino stated that the WH was "eager to work with Congress on legislation that would further codify the president's authority."  Scott McClellan repeated the same refrain that the WH would work with Congress to obtain "legislation that would codify into law what the President's authority already is." As far as the Bush team is concerned, Bush's existing authority that they would like to see codified into law is the unitary executive theory.

4.  From the beginning of Bush's push to "reform" FISA in February 2006, he wanted "legislation to approve the program retroactively, much as Congress eventually approved Abraham Lincoln's suspension of habeas corpus during the Civil War."  Such a retroactive approval is known as Congressional ratification.  Congress may ratify prior unlawful, illegal or unauthorized acts by enacting a subsequent law that approves, confirms or recognizes the earlier actions.  The legal effect of Congressional ratification is that the new telecom immunity is retroactively applied to protect Bush even if the law does not expressly state that the provisions are retroactive.

The potential to provide immunity to Bush and codify his unitary executive theory is the 3rd strike against HR 6304.  mcjoan has written extensively on the harms flowing from telecom immunity and also explained why the substantive provisions are wrong.

If you care about our democracy, or civil rights, or would like to see Bush held accountable by a criminal prosecution after he leaves office, please contact Senator Obama, dial up Congress via some toll-free numbers, or contact a few Senators by fax or phone (all contact information obtained from mcjoan's diaries): (Note: The table listing the names of senators and phone numbers did not publish here at Talkleft, but if you click onto lick for mcjoan's diary, it has the information.)

Sen. Barack Obama:

Phone: 312-819-2008 Toll Free: (866) 675-2008 FAX: 312-819-2088

Toll-free numbers for Congress:

1 (800) 828 - 0498

1 (800) 459 - 1887

1 (800) 614 - 2803

1 (866) 340 - 9281

1 (866) 338 - 1015

1 (877) 851 - 6437

It is quite likely that Democrats supporting this bill merely intend for telecoms to be provided immunity.  However, given the legal effect of the doctrine of Congressional ratification, and the unnecessary use of the words "authority" and "lawfulness" when enacting telecom immunity based upon good faith belief, the bill should be amended to avoid even a colorable argument of immunity for Bush.