The Senate's FISA agreement

Harry Reid is touting the FISA accord as an example of Democrats holding tough. Is that true?

Published February 1, 2008 1:19PM (EST)

(Updated below - Update II - Update III)

In the Senate, Democratic and Republican leaders have, according to Congressional Quarterly and others sources, reached an agreement as to how to proceed on the FISA vote this Monday. There are currently numerous amendments pending to the Cheney/Rockefeller Senate Intelligence Committee bill, almost all of them introduced by Democrats (with one co-sponsored by Arlen Specter) and most of them (if not all) unacceptable to the White House and the GOP.

The essence of the new agreement is that most of the amendments will be subject to a simple up-or-down vote -- if they get 50 votes, then they pass -- while several of the amendments will require 60 votes to pass (allowing, in essence, the Republicans to filibuster those amendments without actually having to go to the Senate floor and engage in a real filibuster).

Senate Democratic leadership sources are trying to claim that this is some sort of victory for Senate Democrats, and echoing that sentiment, even some of the most insightful and knowledgeable around -- such as McJoan at Daily Kos -- are hailing the agreement as evidence that "Dems didn't cave" and that "they held tough." Unless there is something I'm overlooking, I don't understand that perspective at all.

It seems rather clear what happened here. There are certain amendments that are not going to get even 50 votes -- including the Dodd/Feingold amendment to strip telecom immunity out of the bill -- and, for that reason, Republicans were more than willing to agree to a 50-vote threshold, since they know those amendments won't pass even in a simple up-or-down vote.

But then, there are other amendments which might be able to get 50 votes, but cannot get 60 votes -- such as Feinstein's amendment to transfer the telecom cases to the FISA court and her other amendment providing that FISA is the "exclusive means" for eavesdropping -- and, thus, those are the amendments for which the GOP insisted upon a 60-vote requirement.

The whole agreement seems designed to ensure that the GOP gets everything they want -- that they are able to defeat all of the pending amendments which Dick Cheney dislikes, and to do so without having to engage in a real filibuster. In what conceivable way is this an instance of "Dems not caving" or "holding tough?" This is how CQ described the agreement:

Republicans pressed for the threshold to head off any amendments that would significantly change the bill, which was negotiated with the White House.

Some amendments, though, would loosen restrictions currently in law or in the bill.

One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction. Its adoption would require a simple majority vote.

The amendments the GOP likes (i.e., the Bond/Rockefeller amendment to change the Intelligence bill to match Dick Cheney's demands by increasing eavesdropping powers further still), as well as those that can't get 50 votes, are subject to the requirement of simple majority. The ones that can get 50 votes but which the GOP dislikes must get 60 votes. If you're Mitch McConnell, what's not to like about any of this?

Underscoring that point even further, the FISA debate began last week when Harry Reid took to the floor and emphatically announced that he would tolerate no so-called "silent filibusters" -- i.e., the mechanism used by the GOP all year long (with the Democrats' assent) to filibuster bills without having to engage in a real filibuster, whereby the Democrats simply agree in advance that certain proposals will require 60 votes. Last week, I highlighted Reid's vow in this regard, and argued that it seemed that he was finally imposing the obligation to engage in a real filibuster -- though doing so against his own caucus (i.e., against Dodd's intended filibuster), rather than the GOP. This is what Reid said:

[I]f people think they are going to talk this to death, we are going to be in here all night. This is not something we are going to have a silent filibuster on. If someone wants to filibuster this bill, they are going to do it in the openness of the Senate.

After I wrote about this, Reid's office began emailing various bloggers, insisting (quite dubiously) that Reid's admonition was directed at GOP efforts to filibuster, not Dodd's. Whatever Reid might have been thinking at the time, it is now clear that Reid, contrary to what he so boldly vowed, is going to allow the GOP to filibuster silently -- yet again -- by agreeing to a 60-vote requirement on certain key amendments.

To be fair, it's not Reid's fault if some of these amendments -- including the Dodd/Feingold amendment to strip immunity -- can't get 50 votes due to the fact that more than enough Democratic Senators are (needless to say) going to vote in favor of telecom immunity. But had Reid heeded the request of 14 Democratic Senators and brought the Judiciary Committee bill to the floor, or brought the House bill, then it would have been immunity proponents needing 60 votes (to overcome a filibuster of their amendment to insert immunity).

This agreement as to how to proceed was one agreed to unanimously by all Senators, including Dodd and Feingold, which is fine. And there are some reports that the GOP has now agreed to Feingold's amendment to require that the administration make available to the Senate the past decisions of the FISA court, which is good. It also should be noted that until there is a vote, one can't know for sure what the outcome is, so it certainly makes sense to continue to pressure as many Senators as possible to vote the right way.

But this shouldn't be sold as some sort of great resolve on the part of Democratic Senators, since all this agreement really does is provide the quickest, most painless, and most efficient framework for enabling the Senate to pass a bill with telecom immunity and vast new warrantless eavesdropping powers and get it quickly to the President to sign (assuming the House ends up accepting a similar version, which is where the real fight will be).

* * * * *

Two other related points: Marcy Wheeler noted that Dick Cheney appeared on the Rush Limbaugh Show yesterday and claimed that Democrats were opposed to telecom immunity because they're beholden to "trial lawyers." This has become one of the most common -- and one of the most transparently dishonest -- talking points of amnesty proponents.

National Review, in its pro-amnesty Editorial this week, claimed that "when the aroma of torts is in the air, Democrats find it difficult to resist their trial-lawyer constituency, who do so much to keep Democratic campaign coffers full." On Fox News last month, House Majority Leader John Boehner said: "I believe that they deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of the American companies." Numerous GOP Senators made the same accusation last week.

It's hard to put into words how dishonest this is. The lead plaintiffs' counsel in the telecom suits is the Electronic Frontier Foundation, a donor-funded, non-profit organization. Here is what its lead counsel, Cindy Cohn, said about this "trial lawyers" assertion when I interviewed her in October:

GG: John Boehner, the House Minority Leader, was on Fox News on Sunday arguing for telecom immunity, and this is one of the things he said in explaining why he believed in amnesty: "I believe that [telecoms] deserve immunity from lawsuits out there from typical trial lawyers trying to find a way to get into the pockets of the American companies."

Is that an accurate description of your lawsuit and your organization?

CC: No, we are not plaintiff's attorneys. . . . He's welcome to come and visit our offices and if he still thinks that we're rich plaintiffs' attorneys after he's visited our little tiny Mission Street offices, then I have a bridge to sell him. We're a small, struggling non-profit with a very tiny budget - and we're doing this because we're committed to protecting people's privacy in the digital age.

GG: I don't know the salaries of EFF lawyers and I'm not asking that, but I assume it's true that there are all kinds of private sector opportunities and large corporate law firms in San Francisco where lawyers working in those places are making a lot more money, and if EFF lawyers were motivated by the desire for profit -- as Mr. Bohener dishonestly suggested -- there are a lot of other jobs that you could get that would pay a lot more money.

CC: Oh yeah, absolutely. And in fact, our lawyers are just the opposite. Most of the EFF lawyers worked in those big fancy firms for big fancy salaries, and took big paycuts to join us, because they wanted to do personally fulfilling work and feel like they were making the world a better place.

What I tell young lawyers who come to me and say: "I really want to work for EFF - you have such great lawyers," I say: "take your current paycheck, rip it in three pieces, take any third, and that's about what you'll get working for EFF." The lawyers who work for EFF are making some of the biggest contributions to this organization, because they are making far less than they could on the open market in exchange for being able to work on things they believe in every day.

The lawyers behind these lawsuits are American citizens who are making great financial sacrifices in order to defend the Constitutional rights and privacy protections of their fellow citizens and to enforce the rule of law. Those are the people whom Cheney, National Review and Bohener are smearing with what are really just outright lies about their motives and the work they do.

If they were motivated by profit, pursuing these extremely consuming lawsuits would be the last thing they would be doing. But because people like Dick Cheney, Rich Lowry and their political comrades are incapable of believing in political principles separate from their economic self-interest, they apparently assume that everyone is driven by the same barren, corrupt motives that plague them. Not everyone is, and the lawyers behind these telecom lawsuits are driven by anything but a desire to " get into the pockets of the American companies."

Secondly, I noted the other day that right-wing amnesty proponents were falsely claiming that if the PAA were not renewed, it would mean that "FISA will expire" and the Government will thus lose the ability to eavesdrop on the Terrorists. That falsehood began proliferating in various news outlets, including The Washington Post. As a result of that item, numerous readers contacted The Post and complained about the false report and, to its credit, The Post ran a correction the following day, acknowledging that:

A Washington Monday item in the Jan. 28 A-section incorrectly said that the current Foreign Intelligence Surveillance Act authorization will expire Feb. 1. What is set to expire that day is the Protect America Act, an electronic surveillance law that updates FISA.

The only way to rebut these falsehoods is to do so one at a time. As tedious at it can be, it's important that it be done so that the public debate remains at least minimally grounded in facts.

UPDATE: An extremely thorough, technical summary of the unanimous consent agreement reached in the Senate can be found here.

Last night, Keith Olbermann devoted a "Special Comment" on his show to the FISA and telecom amnesty debate. The transcript and video are here.

UPDATE II: Terrorism expert Richard Clarke has a superb Op-Ed in the Philadelphia Inquirer, lambasting Bush's fear-mongering rhetoric on FISA, explaining that "On one issue in particular - FISA - the president misconstrued the truth and manipulated the facts" and:

For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections. . . .

In these still treacherous times, we can't afford to have a president who leads by manipulating emotions with fear, flaunting the law, or abusing the very inalienable rights endowed to us by the Constitution. Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has and still works as the most valuable mechanism for monitoring our enemies.

The case isn't that hard to make for those who want to make it.

UPDATE III: Dan Froomkin, quoting The Providence Journal's Scott MacKay, has excerpts from former GOP Sen. Lincoln Chafee's new book:

The book excoriates Mr. Bush and his GOP allies who repeatedly fanned such wedge issues as changing the U.S. Constitution to ban gay marriage, abortion and flag-burning. But he saves some of his harshest words for Democrats who paved the way for Mr. Bush to use the U.S. military to invade Iraq. . . .

"The top Democrats were at their weakest when trying to show how tough they were," writes Chafee. "They were afraid that Republicans would label them soft in the post-September 11 world, and when they acted in political self-interest, they helped the president send thousands of Americans and uncounted innocent Iraqis to their doom.

"Instead of talking tough or meekly raising one's hand to support the tough talk, it is far more muscular, I think, to find out what is really happening in the world and have a debate about what we really need to accomplish," writes Chafee. "That is the hard work of governing, but it was swept aside once the fear, the war rhetoric and the political conniving took over."

Chafee writes of his surprise at "how quickly key Democrats crumbled." Democratic senators, Chafee writes, "went down to the meetings at the White House and the Pentagon and came back to the chamber ready to salute. With wrinkled brows they gravely intoned that Saddam Hussein must be stopped. Stopped from what? They had no conviction or evidence of their own. They were just parroting the administration's nonsense. They knew it could go terribly wrong; they also knew it could go terribly right. Which did they fear more?"

Chafee was describing the 2002 lead-up to the invasion of Iraq, but the description is just as apt today. And his description of what Democratic Senators did back then after meeting with White House and Pentagon officials sounds a lot like what many of them do today after meeting with White House and NSA officials.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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