FISA Debate Update
CD updating the update to reflect the latest news: Reid has pulled the bill.
Well, we're into it - a full-throated Senate debate on many of the dearest, in all senses of that word, fundamentals of constitutional government,
The opening, as Lambert has suggested, was a bit confusing.
Dodd gave a passionate analysis of the many strands of this new FISA legislation, meant, mainly on the Democratic side, to correct the excesses of last August's Protect America Act, which more or less gutted the FISA court as a check on the power of the executive branch to secretly ignore the civil liberties of Americans not to be spied upon by their own government.
To talk process for a moment, the thrust of Dodd's first speech was in support of the many and profound reasons why the Senate should not proceed on the matter at hand as long as the Intelligence Committee's version is the basis of the debate and the subsequent voting on the entire issue. In other words, he was arguing against the imposition of cloture, so that the Senate might spend time debating the merits of substituting the Judiciary Bill as the basis for debate and amendment.
It didn't look or sound to me like this was Dodd's attempt to get a genuine filibuster going, and indeed, the vote was lopsided in favor of cloture, all Republicans voting yes, only ten Democrats voting no.
This is not the end of the debate by any means, though, and from what I've seen thus far, do not despair that passage of the Intelligence Committee's version of this new FISA bill is a done deal, including the extending of amnesty to those Telecoms which choose to go along with the administration. Here's why:
After a good speech by Barbara Boxer, and a second one begun by Dodd, in the absence of Feinstein who was late to the floor to claim her time, Dodd graciously gave her the floor upon her arrival. She proceeded to announce what I thought were two bombshells - her support for two amendments which she mentioned twice needed to be in any FISA bill she votes for. The amendments are being offered in concert with Rockfeller, Leahy and Bill Nelson.
The first amendment Feinstein dubbed as an "exclusivity" clause, which turned out to be about upholding the FISA court as the sole and exclusive entity which can approve surveillance within the United States, and surveillance of Amerian citizens when they are overseas. The amendment would mirror a similar clause in the House FISA bill, and would effectively close the loophole opened by the administration's legal opinions which located the President's right to ignore FISA in the original AUMF passed by congress after 9/11.
The second amendment Feinstein sent to the desk has to do with amnesty. It will not satisfy many of us, including me, but it will make passage of the Intelligence Committee version of the bill more difficult than Republicans or the White House will like.
Feinstein's amendment, remember it's also backed by Rockefeller and Leahy from what I could gather, would send the whole matter of amnesty to the FISA court itself, who would have to be allowed to view the actual written enticements and legal justifications employed by the administration to secure the cooperation of said Telecoms in extending the reach of the NSA's ability to surveil Americans.
Thus, it would be up to the FISA court to decide, independent of either congress or the executive, whether or not any and/or which lawsuits should go forward.
The reason I think this is a big deal, it's entirely unlikely that Republicans can accept the amendment, and surely the White House won't, which means, according to that first statement by Feinstein, even she would not vote for any version of FISA which didn't contain this amendment.
I suspect Senator Leahy went along with this compromise on amnesty because he also suspects it undermines what appeared to be a bipartisan consensus in the Intelligence Committee by substituting an entirely reasonable alternative which Republicans will simply not be able to embrace because of their commitment to running interference for the White House.
If that happens, all bets are off, because the consensus is shattered.
Next, Ron Wyden gave a terrific speech, spotlighting the need for protection for Americans when they travel overseas. In the process, he demanded that the White House make available to all members of the Senate the legal opinions used to seduce (not his word) the Telcos into cooperating with the administration, outside the purview of either FISA or the congress. Apparently Wyden is also offering an amendment which will insure that travel overseas does not give an administration the right to avoid going to FISA to electronic surveil American citizens.
The Republican arguments looked like exactly what they are; ideological and partisan attempts to cover the administration's ass. All the right notes were struck, fear of terrorists, lies about extending 4th amendment rights to terrorists overseas, calls to bipartisan consensus, charges that the Judiciary Committee bill was passed along partisan lines and after almost no debate. Hatch was at his Mormon best, slamming those partisan terrorist loving-Dems.
Democrats came back and ate his arguments alive.
I have a fair ear for political arguments that work even if they are foolish and wrong-headed, but this time around, my take - the Republicans look bad.
Oh, and by the way, the Democrats look damned good.
That's it for now.