Section 802 of the FISA Amendments Act of 2008 is a blatant attempt to prevent this Court--and every other court, federal or state--from deciding whether the carrier defendants conducted dragnet, warrantless surveillance of millions of Americans' communications and communications records in violation of the Constitution and numerous statutes.
The carriers and the government portray section 802 as merely a decision by Congress about plaintiffs' remedies; after all, they say, plaintiffs may instead sue the government. But statutes cannot override the constitutional protections all Americans enjoy from the government's agents any more than the government itself can. This attempt to destroy plaintiffs' constitutional claims alone dooms section 802. Moreover, the sham proceeding established by section 802 violates due process in myriad ways.
But section 802 is far, far more: it is an attempt to manipulate the judiciary and subvert the Constitution. Underlying the Constitution lies the bedrock, structural principle of the separation of powers, by which the Framers sought "to assure as nearly as possible, that each branch of government would confine itself to its assigned responsibility. The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power, even to accomplish desirable objectives, must be resisted."
Section 802 crosses those limits by explicitly giving the Attorney General the power to partially repeal previously enacted law, delegating standardless discretion to the Attorney General, and requiring courts to accept the Attorney General's factual findings without independent judicial review. It also violates the Constitution by giving the Attorney General the unilateral authority to gag the court and hide court processes from the plaintiffs and the public. Accordingly, this Court must find section 802 unconstitutional.
And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me — drawn from the hour-long meeting we’d had a week earlier — and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, But that doesn’t matter, because I’m not the attorney general.
