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Monday, February 11, 2008

Protecting the Terrorists and Lawyers

Congress is once again debating the FISA laws this week, and it's clear that two constituencies are in the forefront of the debate. Terrorists and Lawyers. Terrorists, under the pending amendments would have more rights than drug traffickers and child molesters. Lawyers would of course have tons of new clients.

In case you've been drinking the kool-aid served up by MSNBC and the rest of the media, let's set a few things straight. Under current FISA law if the CIA were to get a KGB laptop with a dozen agent phone numbers on it there would be NO requirement to get a FISA order to listen in on every conversation to or from that number, regardless of where it originated or ended. This is because the KGB is an agent of a foriegn government. Because Al-Qaeda doesn't represent a government, the Democrats in Congress believe that if you find a dozen terrorist phone numbers on Kalid Sheik Mohammed's laptop you should require a FISA order for any wire tap that might move through a US switching network.

If you are a known drug trafficker or racketeer, under the 1970's RICO statutes there is no requirement for certain wire taps that move exclusively in the US. Congress would like terrorists to have more judicial oversight than drug dealers.

If you are a convicted child molester and a kid disappears in your "area" (no definition given) under Megan's law the police require NO warrant to search your house to look for the kid. If you are a known terrorist though, well we should have to get a warrant, at least according to the folks in the Senate.

As for lawyer being happy, the other thing that's trying to worm it's way into this bill is the ability to sue phone companies that have cooperated with terror investigations by releasing records requested since 9/11, whether there was a FISA order or not!

Again, we'll go back to RICO, and any number of other statutes that all them to be "held harmless" for cooperating with law enforcement during investigations. Congress would like to throw that precedent out the window, but only in the case of terror investigations.

The worst part is that what's being pushed for is "fishing expedition" type of lawsuits. You don't have to be able to show that your records were gotten, you can first sue to see if they were, and then if they were sue to find out how they were gotten. And in each case, of course, you'd be able to get damages paid to you, just for having your phone number appear in someone elses record! Only lawyers could devise such a plan, since it would be a get them rich quick scheme.

How would that work, well it's easy. Say you work with a charity group that gets investigated for funnelling money to Hamas or Al Qaeda. You see on the news that the guy you worked with is arrested. You could file suit, without knowing that your actual phone records were looked at. Just the knowledge that your number appeared in HIS records would be enough to take your phone company to court and find out if there was a FISA order. If there wasn't (and there are legitmate reasons, upheld by courts for decades) you'd be able to sue to recover damages from the phone company for aiding in the investigation.

Think for a minute of the slowing of the investigative process on things that often move quicker than judges minds. Does the phone company give up the records without a warrant in an emergency, and risk being sued? What should be their overriding concern when dealing with law enforcement, possible repercussions or aiding an investigation?

When you think that FISA is the great protector of rights consider also that it was FISA that gave us the "stove pipe" rulings of the 1990's that prevented the FBI and CIA from sharing notes about terrorists in possibly in the US.

There are a lot of common sense changes that could be made to the FISA statutes, the one's being debated this week are not in that group.

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