After extensive wrangling and behind-the-scenes positioning, the Senate is poised to vote on a revised FISA bill, which, at this point, includes retroactive immunity for telecommunications companies that cooperated with Bush’s warrantless-surveillance scheme.
The White House has made its position clear.
Two months ago, President Bush made a strong argument for updating a law which oversees the government’s ability to engage in surveillance of Americans and non-citizens, which requires warrants from a secret court. He spoke of the importance to our nation’s security to have a bill ready for him to sign, so as to not “limit” his administration’s anti-terrorism activities. […]
But underneath this urgency was a threat: Even if Congress sent him an updated Foreign Intelligence Surveillance Act (FISA) bill with the provisions he said were required to pursue wiretaps of individuals with a minimum of judicial oversight, Mr. Bush said he would veto it if it did not also include an extraneous provision: immunity to telecommunications companies from liability for their past participation in the administration’s wiretaps.
Which, of course, brings us to our floor fight. Senate Majority Leader Harry Reid chose to bring the Senate Intelligence Committee’s version of the bill (which has telecom immunity), instead of Senate Judiciary Committee’s version (which doesn’t). What’s more, Sen. Chris Dodd (D-Conn.) placed a hold on the bill, which is supposed to prevent the bill from moving forward, but Reid is apparently ignoring the hold. (Reid also disregarded the request of 14 Democratic senators — including all four presidential candidates from the chamber — who implored him to bring up the SJC bill.)
It’s lead to a confrontation on the floor, which will include the first Democratic filibuster of the year.
Here’s what you need to know:
* Russ Feingold has a good TPM Cafe piece, criticizing Reid, and explaining the context of the debate.
By choosing the Intelligence Committee bill over the Judiciary product, Senator Reid has made things much tougher for those of us who think the courts — not Congress — should decide whether the companies deserve immunity. He’s also made it an uphill struggle of those of us who want more court oversight of the broad new surveillance powers included in the bill.
The first vote will come around noon, on the motion to invoke cloture (or limit debate) on the motion to proceed to (or consider) S. 2248. I expect to speak against the motion before the vote, and will post a link to my remarks after I make them.
We have a big fight on our hands, and unfortunately, the deck is now stacked against us. Instead of being able to defend improvements that were made in the Judiciary Committee, we are going to have to start all over again to try to salvage the good work that was done to improve the bill. This includes adding tougher court oversight and greater protection for the privacy of innocent Americans, and by stripping out the retroactive immunity provision. A vote on the amendment to strike immunity, which Senator Dodd and I will offer, could come fairly soon. We will be pointing out that under current law, companies already get immunity for cooperating with government requests for information — as long as the requests follow requirements that are clearly laid out in the law. If companies didn’t follow this law, and cooperated with illegitimate requests for sensitive information, then we should not hand them a “get out of jail free” card after the fact. Judges should be the ones to make this determination — and to rule on the legality of the warrantless program.
* Feingold also has a good “myths vs. fact” sheet on his site, including these FAQs:
Myth: Telephone companies should not be expected to know whether the government’s request for assistance was lawful.
Reality: Telephone companies have a long history of receiving requests for assistance from the government. In the 1970s, they worked with Congress to devise a law that tells them exactly which government requests they should honor, in terms that are clear and easy to follow. And they have lawyers who are well-paid to compare government requests with the requirements of the law.
Myth: If we don’t pass retroactive immunity, the government will lose companies’ cooperation in the future.
Reality: The immunity provision in current law gives telephone companies an ironclad defense if they received a government certification that meets certain clear requirements. It holds companies liable for complying with non-compliant government requests precisely because we don’t want the companies to cooperate with illegal government programs. Preventing that kind of cooperation, and protecting Americans from illegitimate government snooping, is one of the main reasons FISA was passed.
Myth: The bill’s immunity provision is appropriate given the heightened urgency and threat level in the immediate aftermath of 9-11.
Reality: The bill does not focus on the “immediate aftermath” of 9-11; it would immunize illegal conduct even if that conduct occurred five years after 9-11.
* And Dodd, who gave up campaigning today to work on this issue, delivered a terrific speech on the Senate floor:
“If this disastrous war has taught us anything, it is that the Senate must never again stack such a momentous decision on such a weak foundation of fact. The decision we’re asked to make today is not, of course, as immense. But between fact and decision, the disproportion is just as huge.
“So I rise in determined opposition to this unprecedented immunity and all that it represents. I have served in this body for more than a quarter-century. I have spoken from this desk hundreds and hundreds of times. I have rarely come to the floor with such anger.”
On Friday, Harry Reid said of the debate, “I’ll guarantee you right now, one thing that’s going to occur: not everyone will be happy.” At this point, it’s unclear if anyone will be.
Stay tuned for updates.
Update: Dodd will literally filibuster the bill if it includes telecom immunity. “He will speak as long as he can,” a campaign official said. “He will speak until he can no longer.”
Second Update: There was a cloture vote on the motion to proceed, which we lost, as expected. The vote was 76 to 10, which was probably not a good sign as to how the day is likely to go.