Today's FISA vote

Live-blogging today's proceedings in the Senate.

By Glenn Greenwald
January 29, 2008 1:13AM (UTC)
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(Updated below - Update II - Update III - Update IV)

This morning, I wrote extensively about today's vote on the FISA filibuster and related matters here, but am starting a new post now to live-blog the proceedings, which have now begun in the Senate (and can be viewed on C-SPAN here). That earlier post should be read for background.


It now seems highly likely (though not certain) that the Democratic filibuster to prevent a vote on the Senate Intelligence Committee bill will succeed. This afternoon on the Senate floor, GOP Sen. Arlen Specter even indicated that he would support the filibuster, making it extremely unlikely that Senate Republicans will be able to get 60 votes to cut off further debate and proceed to a vote.

That means that the Senate will then proceed to debate and vote on all of the pending proposed amendments to the Senate Intelligence Committee bill (including one from Dodd and Feingold to strip telecom immunity out of it, one from Feinstein to transfer the telecom cases to the FISA court and let that court decide whether there should be immunity, one from Feinstein re-iterating that FISA is the "exclusive means" for legal eavesdropping, and one from Specter/Whitehouse to allow the telecom lawsuits to continue but to substitute the Government for the telecoms as defendants).

But the most interesting question at the moment is whether the Senate, once it blocks a final vote on the bill, will be able to pass a 30-day extension of the Protect America Act. The House is scheduled tomorrow to vote on the extension, but either way, the President has vowed to veto it.


If there is no 30-day extension, then it is difficult to see how this is going to play out. The deadline for expiration of the PAA is this Friday. If the House and Senate do not pass identical bills by that date -- and, provided the Senate sustains its filibuster this afternoon, it seems impossible that they will -- then that means (in light of Bush's refusal to accept a 30-day extension) that the PAA is almost certain to expire on Friday without any new bill being in place. Given Bush's endless insistence that the PAA is necessary to save us all from The Terrorists, it is -- as I explained this morning -- one of his most brazen acts ever that he will simply allow the PAA to expire. How can expiration of this "Critical Intelligence Tool" possibly be preferable to a 30-day extension?

The only conceivable way that this could all work out for the White House is for there to be a repeat of what occurred back in August, when the pro-warrantless-eavesdropping Protect America Act was foisted on our country: namely, the Senate hastily passes at the last minute a terrible bill demanded by the White House right before the deadline, and then forces the House to choose between (a) passing the terrible Senate bill or (b) allowing the deadline to pass with no bill at all. But given the rather strong opposition in the House to telecom immunity and vesting vast new warrantless eavesdropping powers in the President, it's hard to imagine the House capitulating to the Senate again in that way.

This afternoon, I asked a well-placed and knowledgeable source in the House about what would likely happen if the Senate passed a bad bill tomorrow or Wednesday and left the House with very little time either to do the same or let the PAA expire. This is the reply:

As to how it plays out, I'm sure that you saw the editorial in the New York Times yesterday that suggested we pass a 30-day extension and leave town, much like Senate did to us in August with S. 1927 (the PAA).

We're not in session this week after tomorrow afternoon. House vote on HR 5104 [to extend the PAA by 30 days] is contemplated tomorrow.

If the bill fails over here [because] of Republican opposition, or in the Senate, or in the President's veto pen, then any "going dark" would be on their hands.

That's the right way to think about it and one hopes the House will do that. Moreover, since the House isn't in session until after tomorrow, it seems impossible that there will be a bill ready for the President's signature before Friday -- which means Bush will have to choose between retreating from his veto vow on the 30-day extension or leaving us all vulnerable to being Slaughtered by the Terrorists and unable to listen in when Osama Calls.

The best course for the Democrats, by far, is to sustain the filibuster this afternoon and then vote for a 30-day extension. That is the key. That will then force Bush either to agree to the 30-day extension (and thus back down from his veto threat) or be in the position of vetoing an extension of a bill which he himself has repeatedly claimed is so very vital to our National Security and to Keeping Us All Safe.


More updates to follow.

UPDATE: Of all the creepy post-9/11 phrases to which we've been subjected ("The Patriot Act" - "Protecting the Homeland" - "enhanced interrogation techniques" - "Department of Homeland Security"), I think the creepiest and most Orwellian is the phrase "good patriotic corporate citizen," used to describe companies which broke our laws because the President told them to. It's now apparently a Patriotic Duty to obey the President even if he tells you to violate the law.

The accompanying claim that companies should never "second-guess" the "judgment of the President regarding what's legal" -- which I just heard from John Cornyn and Saxby Chambliss -- is equally creepy, and is the crux of the authoritarian case for telecom immunity.

UPDATE II: The vote on the GOP cloture motion -- to ignore all the amendments and proceed to a final vote on the Bush-Rockefeller SIC bill -- has just occurred. The motion has failed, which means (shockingly) that Democrats have successfully mounted a filibuster preventing the vote on this horrible bill from occurring.

The vote was 48-45. Republicans missed by a whopping 12 votes to achieve cloture (60 votes needed for cloture). That's a pretty gaping defeat; the Democrats did well to stand together. Three Democratic Senators -- Ben Nelson (Nebraska), Blanche Lincoln, and Mark Pryor -- voted for cloture (Mary Landrieu originally voted for cloture, then apparently changed her vote). The rest of the Democrats (including Rockefeller, Reid, Clinton and Obama) voted in support of the filibuster, along with 1 lonely GOP Senator (Specter).


In one sense, this is an extremely mild victory, to put that generously. All this really means is that they will now proceed to debate and vote on the pending amendments to the bill, almost certainly defeat all of the meaningfully good ones, approve a couple of amendments which improve the bill in the most marginal ways, and then end up ultimately voting for a bill that contains both telecom immunity and warrantless eavesdropping. Moreover, it seems clear that Senate Republicans deliberately provoked this outcome and were hoping for it, by sabotaging what looked to be imminent Democratic capitulation so that Bush could accuse Democrats tonight of failing to pass a new FISA bill, thus helping their friend Osama.

Still, in another sense, this is significant. Preventing a vote today means that there is more time to work on opposing immunity, including by working on ensuring that the House stays firm behind its relatively decent bill. It also means that the Senate -- for once -- has refused to capitulate to brazen White House pressure tactics, whereby the President demanded that the Senate give the administration everything it wants before the Friday expiration of the PAA. Also, the presidential candidates responded to public pressure by joining in the filibuster, which is encouraging.

And, perhaps most significantly, this slight stirring of resolve might carry over into the next vote, to extend the PAA by 30 days and thus force Bush's hand either to veto the extension or back down (they will need 60 votes just to vote on that proposal). Again, anything that prevents quick and quiet resolution of telecom immunity and new FISA powers is a real benefit.


They will now vote on the 30-day extension. Reid just said the House was sure to vote in favor of it. That means the Republicans can either allow this "Critical Intelligence Tool" to continue (by voting for a 30-day extension) or deprive our intelligence professionals of the ability to Keep Us Safe.

UPDATE III: The vote on the Motion for Cloture on the 30-day extension (i.e., to proceed to a vote on it) just failed -- 48-45 (again, 60 votes are needed). All Democrats (including Clinton and Obama) voted in favor of the Motion, but no Republicans did -- not a single one. Thus, at least as of today, there will be no 30-day extension of the PAA and it will expire on Friday.

Reid, however, indicated that it was certain that the House will vote in favor of an extension tomorrow, which means it will be sent to the Senate for another vote. It's possible, then, that the Senate will vote again later in the week on an extension, but it's hard to imagine any Republicans ever voting in favor of an extension since Bush has vowed to veto it.

By blocking an extension, Republicans just basically assured that the PAA -- which they spent the last seven months shrilly insisting was crucial if we are going to be Saved from The Terrorists -- will expire on Friday without any new bill in place. Since the House is going out of session after tomorrow, there is no way to get a new bill in place before Friday. The Republicans, at Bush's behest, just knowingly deprived the intelligence community of a tool they have long claimed is so vital. Is the media going to understand and be able to explain what the Republicans just did? Yes, that's a rhetorical question.

UPDATE IV: Victories of any kind are so rare that I'm reluctant to dampen the enthusiasm -- and it is notable that, regardless of their motives, Senate Democrats did actually manage to do something different than the White House ordered them to do, so that's good. But it's important to emphasize what really happened here today, and what didn't happen.

In comments, nicteis explains what would have occurred had Senate Republicans not filed their premature Motion for Cloture last week and simply allowed the amendments to be voted on:

If they hadn't done this, Reid would have pushed through rapid up or down votes on all the amendments, held sessions through the weekend to get through the obligatory thirty hour period for Dodd's filibuster of the [Intelligence Committee] bill itself, and we'd now be seeing the cloture vote on the bill itself, followed by passage and the giveaway to Bush.

The Republicans didn't want to allow Reid to capitulate on everything. This was either because they wanted to have a "Dems have left us defenseless against Osama" club to swing, or because they didn't want to take the miniscule chance that DiFi's amendment would pass, and the further miniscule chance that the FISA court would actually secretly rule against the telecoms.

In essence, the reason Senate Democrats were able to successfully filibuster today is not because they oppose the Cheney/Rockefeller Senate Intelligence Committee bill. It's not because they stood firm against telecom immunity or warrantless eavesdropping. Quite the contrary, more than enough Senate Democrats were and still are prepared to vote for that bill in order to ensure passage (as they demonstrated on Thursday when 12 of them, in essence, voted for that bill).

The only reason Democrats were able to hold their caucus together today to filibuster is because The Senators were offended that their inalienable Senatorial Right to vote on amendments was deprived by the GOP's premature Cloture Motion. The one (and only) "principle" that can really inspire many of these Senators to take a stand is the protection of their Senatorial prerogatives. Many of them don't actually have any beliefs other than that.

Reward lawbreaking with immunity? Fine. Give the President new warrantless eavesdropping powers? No problem. Abolish habeas corpus and legalize torture? Sure. Deprive a Senator of the Right to vote on an amendment before cloture? Unacceptable!

Senate Democrats today took a stand for their procedural rights, not against telecom immunity or warrantless eavesdropping. After all, many of the Senate Democrats who voted to filibuster this bill were more than ready last week to vote for that bill, and they will vote for it again soon enough. Moreover, while they were upset that they were denied the right to vote on these amendments, many of them intend to vote against those very same amendments and will ensure that most, if not all of them, fail, so that the bill arrives at the White House in a form acceptable to the Leader.


As indicated, it's preferable for several reasons that the Cloture Motion failed today -- and one can still praise Senate Democrats for refusing to capitulate fully (at least yet) -- but it isn't the case that Senate Democrats collectively took a stand here for anything more substantive than their own institutional customs. Many of the Democratic Senators whom you like today for voting against cloture will be voting soon enough in favor of telecom amnesty and for warrantless eavesdropping. The House is the real hope for stopping these measures.

Glenn Greenwald

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