Yet another attempt is being made to pass a FISA revision bill that will provide immunity for the telecoms against lawsuits for their part in illegal spying on American citizens. The cabal planning this maneuver expects to take their plot to both the House and Senate next week, where coalitions of Republicans and BlueDog Democrats could provide enough votes for passage.

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Update 3: NYT article and a blogger talks to Hoyer’s office

Update: More on the new FISA deal from The Hill and Glenn Greenwald. Text is down at the bottom.

Update 2: Congressional contact information list

House and Senate contact information

Representative Nancy Pelosi, Speaker’s Office Email

Senator Harry Reid Email

Senator Patrick Leahy, Chair Senate Judiciary Committee Email

Representative John Conyers, Chair House Judiciary Committee (accepts email only from constituents)

2426 Rayburn Building
Washington, DC 20515
(202) 225-5126
(202) 225-0072 Fax

Senator Barack Obama Email

Senator Hillary Clinton Email

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Tim Starks reports in Congressional Quarterly that Steny Hoyer D-Md, Sen. Christopher S. Bond , R-Mo and Jay Rockefeller D-W.Va., after several months of backdoor negotiations, have joined forces with the Bush administration and Congressional Republicans to assemble the bill, reported to contain a provision that will leave up to a Federal district court the question of whether or not telecom companies can be sued for FISA violations. The bill will stipulate the terms by which the court can make its ruling, and those provisions will ensure that the immunity is granted.

According to CQ the cabal of conspirators consists of:

The deal was hammered out Thursday night at a meeting that included Hoyer, Bond, Senate Intelligence Committee Chairman John D. Rockefeller IV , D-W.Va., House Minority Whip Roy Blunt , R-Mo., and representatives from the Bush administration.

The Deal

Details are leaking out, and without a formal announcement rumors are flying. While the new deal evolved from an earlier Bond/Hoyer proposal, according to CQ a House Democratic aide familiar with negotiations said there had been major changes. The Washington director of the American Civil Liberties Union, Caroline Fredrickson, said that sources have told the ACLU the deal would include a sunset after six years. The House Democratic aide disagreed, saying the sunset timetable was not six years but declined to state the length of time the law would remain in effect.

Christy Hardin Smith at FDL reports that Hoyer has put out the word that this is a “done deal” but there are other reports that as the cabal pulled their deal together they failed to run it past either John Conyers or Patrick Leahy, chairmen of the House and Senate Judiciary Committees respectively. That turf intrusion alone may doom any chance of even getting to the floor, much less passage.

Christy has also heard that Hoyer’s aggressive pushing on this deal has offended many House Democrats, and it is uncertain if he can get enough votes for passage over Pelosi’s objections. Christ asks, What’s in this for Steny? A good question, and I’ll come back to that below.

From the ACLU, via Christy:

This FISA deal looks like the unconstitutional Senate bill in sheep’s clothing. Whatever silk purse Hoyer tries to make of Bond’s sow’s ear and no matter how they try to sell it, the end result of all this negotiating will be exactly what the administration has wanted from the beginning - FISA rewritten to delete court oversight of surveillance and immunity for its pals at the telephone companies.

From the language we’ve seen, we’re back at square one, looking at a bill just like the old Senate bill that lacks meaningful judicial involvement. The Fourth Amendment requires prior and individual court review before the government digs into our private conversations. It is clear the next vote will be on a bill that fails this test – by permitting the government to conduct mass untargeted surveillance, sometimes without prior court review, and sometimes with prior court review – and then only when the government unilaterally decides that it is willing and able to answer to the judicial branch.

It is also clear that the deal is intentionally designed to grant immunity to companies that facilitated illegal wiretapping. If the only role for the court – be it District or a FISA court – is to determine whether the companies received a request from the Administration, and not to determine whether those requests were legal, it’s a sham review. The president has publicly acknowledged that the companies were repeatedly sent authorizations to turn over Americans phone calls and emails. It is absolutely guaranteed that current and future cases will never determine whether this administration and its friends in the telecom industry broke the law.

The ACLU urges Senators to vote against this deal if it is brought to a vote next week.

KagroX also has thoughts on the subject, mostly concluding that Hoyer has lost his influence with the Democratic caucus; I am not at all convinced that is so.

What’s in it for Steny?

Steny Hoyer wants to be Speaker of the House. He’s been scheming to get the job for years, and would like nothing more than to squeeze Pelosi aside. (Their rivalry goes back 40 years, to when he and Pelosi both clerked for Senator Daniel Brewster of Maryland. He ran against Pelosi for Party whip in 2002 and lost; her victory in that election propelled her to the Speaker’s job – the job Steny thinks should be his.) Hoyer is a favorite of the House BlueDogs, who sided with him against Pelosi’s wishes and elected him Majority Leader over John Murtha, her preferred candidate.

Among Hoyer’s many machinations is spreading the false notion that Democrats must steer far right on all matters of “national security” or risk being defeated at the polls by Republicans, and then sponsoring neocon-friendly legislation to meet that conjured need. His efforts to cobble together a new FISA bill – including completely inappropriate but BlueDog supported telecom immunity – are designed to provide that entirely unnecessary political cover. If the bill succeeds in passing, he will claim credit for securing the Democratic majorities and especially for giving cover to the BlueDogs; if it fails, they will still have been able to cast votes in favor to cover their right flank and he will still claim credit for doing his best to protect them.

Democrats are expected to pick up between 20 and 30 new House members this fall, most of them elected in “conservative” districts and expected to align with, if not formally join, the BlueDog Coalition. With these newfound allies, Hoyer may be powerful enough to oust Pelosi. Should Barack Obama fail to be elected President, there will be a substantial reassessment of the entire Democratic leadership and Hoyer’s chances will be further increased. Steny Hoyer wants to be Speaker; if he has to sell the constitutional rights of American citizens down the river to get what he wants, so be it.

FISA and Boumedienne v. Bush

The recent SCOTUS decision on habeas corpus, authored by Justice Anthony M. Kennedy for the majority, is one of the finest pieces of writing to come from the Supreme Court in many years. It is also the most significant single decision on the separation of powers to be rendered since at least Nixon, and the more I read it the more impressed I am at both its assertive definitiveness and its breathtaking scope. Judgements of such power and impact on constitutional structure do not happen often; this one should be widely read and, as Leah aptly notes, celebrated. In this ruling, Marbury v. Madison is affirmed with a vengeance.

Here’s Chief Justice John Marshal in 1803:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

And here is Justice Kennedy, 205 years on:

Our basic charter cannot be contracted away like this [by claiming the US has no sovereignty over Guantanamo because it is Cuban territory only occupied by lease]. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” Murphy v. Ramsey, 114 U. S. 15, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Court’s recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803).

-snip-

These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. [emphasis added]

SCOTUS decisions are usually very narrowly written and carefully circumscribed. Someone as intelligent and cautious as Kennedy could not possibly have been unaware of the impact of the words he has chosen, insisting that the Court’s judicial authority must not be constrained to a simple review of whether (1) standards and procedures developed by an executive agency are lawful and (2) whether those standards were followed. That constraint of the power of the courts under the Detainee Treatment Act of 2005 and Military Commissions Act of 2006 is for Kennedy the very heart of the issue:

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT [Combatant Status Review Tribunal ] complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

Kennedy then, speaking for the Court, reasserts Marbury and commands full control of the judicial process including the authority to judge the evidence accumulated by the executive in support of it’s administrative decisions along with any additional exculpatory evidence the court deems proper:

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

The Court thus rejects, without equivocation, any claim that either Congress or the Executive or the two of them in collusion can restrict the power of the judiciary to inquire into any and all evidence regarding a case at hand and further asserts that the courts, and the courts alone, may decide on the meaning and applicability of all laws.

This is potentially a critical assertion in regards to both the pending Protect America Act that Steny and his buddies are pushing, and more importantly the entire FISA structure itself. Boumedienne rejects the notion that Congress can circumscribe the role of the courts in reviewing the execution of a plan implemented by the executive branch, exactly what is being plotted by Steny and Friends. Again, per Christy Hardin Smith’s ACLU sources:

Whatever silk purse Hoyer tries to make of Bond’s sow’s ear and no matter how they try to sell it, the end result of all this negotiating will be exactly what the administration has wanted from the beginning - FISA rewritten to delete court oversight of surveillance and immunity for its pals at the telephone companies.

Even the current FISA process, where the administration decides what evidence to provide and the FISC [Foreign Intelligence Surveillance Court] has no power to ask for more or to even review the subsequently collected wiretaps and decide if the original ruling was correct, fails Boumedienne. Consider again this declaration from Kennedy of what is unacceptable:

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense….

and substitute FISA, as Marcy at empywheel suggests:

The FISC has jurisdiction not to inquire into the legality of the wiretap program generally, but only to assess whether the government complied with the “standards and procedures specified by the Attorney General….

With Kennedy’s wording, the Supreme Court has put the Congress and the Executive on notice that no concern, however frighteningly phrased, is sufficient to overthrow the terms of the Constitution. What makes this turn of events even sweeter is that the Court’s position rests on a starkly conservative philosophy; no clearer interpretation of Founder’s Intent is possible.

That the Bush Administration’s polices towards suspension of habeas corpus are unconstitutional is no longer open to debate. The same ruling also directly challenges the constitutionality of the pending Protect America Act provisions for both expanded wiretapping and telecom immunity, and even puts existing secretive and judicially compromised FISA procedures in significant jeopardy.

Cause for celebration, indeed.

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Update: The Hill confirms the report at CQ about Steney and Jay’s little deal with the Republicans. Their story includes this quote:

Shana Marchio, spokeswoman for Bond, said that Thursday’s negotiations marked the fourth round of talks between her boss, Hoyer and Blunt. She said this meeting also included Rockefeller, staff for House committees, the White House and the intelligence community.

The mention of “staff for House committees” suggests greater involvement for Conyers than reported at emptywheel, although which “House committees” were involved in the negotiations is not specified.

Glen Greenwald writes about the deal here (Item 3), promising more tomorrow (6/15). He says:

Specifically, Democratic Congressional leaders (i.e., Steny Hoyer, Nancy Pelosi and Silvestre Reyes) have now reached agreement with the White House and the GOP to pass a FISA bill that would give the President, in essence, everything he wants: guaranteed dismissal of the telecom lawsuits and vast new warrantless eavesdropping powers.

But Greenwald’s only references are the Hill and CQ stories, which don’t make those claims. The Hill is more circumspect about how far along things have progressed:

But aides said the deal is not final because negotiators have to vet the language within their respective caucuses. One person familiar with the talks said if there are no major objections, the deal could be announced next week.