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Important day for FISA and amnesty

 The battle to enforce the rule of law, checks and balances, and the Fourth Amendment heats up again.

Glenn Greenwald

Nov. 15, 2007 | (Updated below - Update II - Update III - Update IV - Update V - Update VI - Update VII - Update VIII - Update IX - Update X - Update XI)

There are several significant events today in the campaign to prevent the granting of amnesty to lawbreaking telecoms and to preserve the warrant requirement and other safeguards for government eavesdropping. I will post updates here as they occur.

First, the House will vote later today on its version of a newly amended FISA law (the RESTORE Act) which is infinitely better than the bill approved by Jay Rockefeller's Senate Intelligence Committee. The House bill contains far more safeguards and does not contain any form of telecom amnesty. Several weeks ago, the House was scheduled to vote on that bill but it was pulled by House leadership at the last minute, presumably because it lacked the votes to pass.

But one reason it lacked the votes was because several Democratic opponents of warrantless eavesdropping -- such as the excellent Rep. Rush Holt of New Jersey -- announced that they would vote against the House bill, because it lacked sufficient oversight safeguards. But Rep. Holt, a member of the House Intelligence Committee, has spent the last several weeks working for improvements to the bill -- including added FISA oversight powers and Congressional reporting requirements -- and he now intends to vote for it.

Debate over the RESTORE Act has begun this morning and they will return to it and a vote after they conclude another matter. Here are some quite good remarks from the debate today from Democratic Rep. Lloyd Doggett of Texas:



I don't know what the prospects are for the House vote, but there must be some chance that it will pass or else, presumably, a vote would not be scheduled.

Then there is the Senate. The horrendous bill voted out of Rockefeller's Committee has been before Pat Leahy's Senate Judiciary Committee for the last couple of weeks. A vote is scheduled on that bill and various amendments today, so it should be clear by the end of the day how the bill will arrive on the Senate floor for a vote (if it does).

Sen. Feingold is introducing an amendment to strip the bill of the telecom amnesty gift which Jay Rockefeller ensured was put into the bill to protect his campaign contributors from liability. The problem, however, is that Feingold's amendment can pass only if all Committee Democrats vote in favor of it (assuming no Republicans do), and two of the Committee members -- Dianne Feinstein and Sheldon Whitehouse -- already voted in favor of amnesty on the Intelligence Committee. All indications are that Feinstein intends to vote with the administration yet again, thus ensuring that the FISA bill ends up on the Senate floor with the telecom amnesty provisions the White House wants (which will make it much harder to enact a FISA bill that does not contain amnesty).

Precisely due to Bush-enabling behavior like that, numerous California Democrats have introduced a measure in their state's party organization to censure Feinstein for her conduct. Unsurprisingly, ossified, worthless, status-quo-perpetuating Party apparatchiks are loyally defending Feinstein and trying to block a vote on the censure measure:

They said its supporters made up a small minority of Democrats with a big bullhorn, and dismissed the censure as a mere distraction for party members focusing on recapturing the White House in 2008.

"It is going to be thrown out and rejected," said Bob Mulholland, a veteran party strategist in Sacramento. "Sometimes people can't anticipate or can't understand the big picture."

State Democratic Party Chairman Art Torres did not return messages seeking comment. But his spokesman Roger Salazar told the Sacramento Bee, "this party supports our Democratic senator and will continue to do so . . . Period."

The Chairman has so decreed. And one can only marvel at the patronizing explanation that those who are angry about Feinstein's Bush-revering simply "can't understand the big picture."

So, in other words, they'll blindly support Feinstein no matter what she does. And she'll continue to support the Bush administration no matter what. That means, by virtue of the transitive property, that the Democratic Party apparatus will continue to support the Bush administration no matter what -- which is, of course, what explains what has been happening the last several years, and particularly this year.

If the bill ends up leaving the Senate Judiciary Committee with telecom amnesty in it -- as it looks like it will, thanks to Feinstein -- then that is when Chris Dodd's pledges come in. He will first formally assert a "hold" on any such bill and demand that Harry Reid honor it. If Reid does not, then Dodd will lead a filibuster on the Senate floor to prevent passage, and it remains to be seen how many other Senators support him, actively or otherwise (Barack Obama and Joe Biden have unconditionally pledged to support him, while Hillary Clinton issued a statement about that which a team of linguists are still trying to decipher).

There are still several genuine pressure points to prevent amnesty and some of the worst warrantless surveillance provisions, including in the House, but all of that -- for all of the reasons that are well-known -- requires a real uphill fight. I'll post further updates today as they are available.

UPDATE: Christy Hardin Smith at FDL has more details about today's events; be sure to check her post as well for updates.

UPDATE II: From the lead Editorial today in Feinstein's hometown newspaper, The San Francisco Chronicle (h/t Sole Proprietor):

The [telecom amnesty] vote is expected to be close. Sen. Dianne Feinstein, D-Calif., once again a potential swing vote on the committee, has signaled her support for the immunity provision.

If the immunity provision survives, Americans may never learn the extent to which the Bush administration -- with the cooperation of telecom companies -- may have openly defied laws designed to ensure that government surveillance is limited to targeted, legitimate law enforcement purposes. The immunity provision in the reauthorization of the Foreign Intelligence Surveillance Act would wipe out about 40 lawsuits alleging that telecom firms violated their customers' rights by handing over data without insisting on a warrant. . . .

Immunity would offer blanket protection to companies accused of betraying their customers and to a government accused of abusing its power. Americans who cherish their basic freedoms deserve their day in court.

One of the very few positive events in the Senate Intelligence Committee was that Sen. Whitehouse successfully introduced an amendment to the bill to require warrants for eavesdropping on Americans who are overseas, a provision which the White House indicated was unacceptable. Apparently, this morning Sen. Feingold successfully introduced a similar amendment to limit the power of "umbrella warrant" requirement beyond what the White House would accept. The more "unacceptable" provisions that are inserted to the bill, the greater the likelihood is that Bush will veto the bill.

UPDATE III: This is good news

UPDATE IV: The Raw Story report I linked to in Update III was completely inaccurate (it originally indicated the House bill had been passed; that story has been corrected now). The House thus far only voted on a Rules motion which essentially allowed the vote on the bill itself to be scheduled for this afternoon. The vote on the bill itself has not occurred yet and will only take place after the House finishes debating a bill on sub-prime mortgages. My understanding is that the FISA vote will take place today, but -- contrary to that Raw Story report -- it has not yet taken place. The House proceedings can be viewed on C-SPAN here.

UPDATE V: The House has now moved to consideration of the FISA bill. The debate can be viewed on C-SPAN, linked above. There are reliable indications that the bill has a good chance of passage, so that would be good news.

UPDATE VI: Senate Democrats come through for George Bush yet again, as Sen. Feingold's amendment -- to remove telecom amnesty from the FISA bill -- fails by a vote of 12-7 11-8. Democrats Dianne Feinstein, Sheldon Whitehouse and Herb Kohl joined all of the Republicans (except one, I believe) to vote against Feingold's amendment (i.e., to vote in favor of telecom amnesty). That almost certainly means that the bill will be sent to the Senate floor with telecom amnesty in it (and will be filibustered by Sen. Dodd), although it will also have numerous provisions in it relating to surveillance which the White House has vowed will result in a veto (and for those enamored of legislative procedure: thus far, only Title I of the FISA bill -- relating to surveillance -- has been "reported out" by the Committee; Title II, dealing with amnesty, has not).

The House is still yet to vote on their far better bill, which does not include amnesty.

UPDATE VII: Here are the remarks today on the House FISA bill from one of the best members of Congress, Rep. Rush Holt. As I indicated, he was prepared to vote against even the House Democrats' RESTORE bill last month, and he explains in his remarks today why he is now satisfied with the current bill, which he spent the last several weeks working to improve.

On a separate note, I am receiving more indications that the House bill (which does not include amnesty) will pass. The question then will be how serious House Democrats are about defending their bill -- i.e., whether this is just all for show and they intend eventually to capitulate once they conference with the Senate and/or once Bush vetoes the FISA bill, or whether they will remain steadfast, stand the President down, and really refuse to pass a bill that grants the amnesty and vests the vast new warrantless surveillance powers that the White House is demanding.

For reasons that require no elaboration (see the Senate vote on Feingold's amendment), it's difficult to be confident in the outcome of all of this. Still, a vote by the House tonight to pass this bill will be a decent step.

UPDATE VIII: The vote in the Senate Judiciary Committee on Feingold's amendment to strip out amnesty was actually 12-7, not 11-8 (Leahy misspoke). All Republicans -- and Feinstein, Whitehouse and Kohl -- voted for amnesty. Now it will go to the Senate floor, where it is difficult to see Dodd's filibuster being sustained. They would almost certainly have 60 votes in the Senate to override Dodd and pass the bill with amnesty in it.

That means (assuming that the House votes in favor of its version tonight) that the FISA bill will be sent to a Conference Committee, where the House and the Senate will reconcile their various versions and agree on one bill. Real mischief can occur there, since that all takes place behind the scenes, with little public debate or media coverage. That process often results in an in-the-dark agreement that quickly gets sent to both houses for a fast vote before they recess and scamper out of town. Obviously, vigilance will be required.

UPDATE IX: Even among people who closely follow Congressional procedures, there is a great deal of confusion, and very little clarity, over what actually happened in the Senate Judiciary Committee today. It does seem that Feingold's amendement -- to strip out amnesty -- failed, as I reported. Nonetheless, some (such as Wired's Ryan Singel, TPM and the ACLU) are repoting that the bill is being somehow sent to the floor without amnesty included in it. Singel describes it as "a stunningly unexpected win," while TMP's Greg Sargent says "it looks like a big victory for opponents of telecom immunity." I'll post more about this once it's clear.

UPDATE X: Matters are a bit clearer, and I think some of these claims of a great victory are looking a bit overstated. It's not as bad as it could have been (i.e, the bill sent to the full Senate with amnesty), but it's not a victory either (the Committee did not strip the bill of amnesty). Instead, once Feingold's amendment failed, they basically agreed not to decide at all on amnesty and leave it to the full Senate. As this AP article states, "the Senate Judiciary Committee punted on Thursday over whether to shield telecommunications companies."

Similarly, this statement from Sen. Leahy says that "the Feingold amendment . . . did not prevail in the committee" and that "The full Senate will yet need to resolve the immunity issue." And a statement from Sen. Feingold (via email) says that "I hope that, when the full Senate considers this issue, the Majority Leader brings up the Senate Judiciary Committee bill instead of the badly flawed Intelligence Committee alternative."

Apparently, the Committee agreed (by a 10-9 party line vote) to do nothing on amnesty -- neither leave it in nor strip it out -- and instead left it to a floor fight to determine if amnesty will end up in the bill passed by the Senate. That's preferable to having the bill sent to the floor with amnesty (because now, it will need 60 votes to overcome Dodd's filibuster and to support an amnesty-specific amendment to put it back into the bill), but it's not as clear of a statement as the Committee's having stripped it out.

UPDATE XI: Having just spoken with several people involved in today's morass, I have a lot more clarity about what happened. What I described in the prior update is accurate. Now, the next step will be focused on Sen. Reid. He has virtually unlimited discretion to decide what version of the bill to introduce to the full Senate. He could introduce the Intelligence Committee version (with amnesty), the Judiciary Committee version (without amnesty), the House version, or he could just introduce something entirely new altogether, something that gets negotiated between Rockefeller, Leahy and Reid.

Even under the best-case scenario -- namely, Reid introduces a bill which does not contain amnesty -- anyone can (and certainly will) offer an amendment to include amnesty in the bill, and no matter what happens, it will be necessary to find 41 Senators willing to support Dodd's filibuster to keep amnesty out of the bill. As indicated, today is a good result in that it's preferable for the bill to have left the Committee today without amnesty in it (especially given the 3 Democratic members' support for amnesty) -- and that's not nothing -- but there is no grand "victory" in the sense that there is now some huge hurdle to having the Senate's bill include amnesty.

-- Glenn Greenwald