The Amnesty Debate

So here it is. Today the Senate is debating updates to the FISA bill. The Intelligence Committee version, which includes amnesty for the phone companies, will be the primary bill. The first vote will be to substitute the bill with the better Judiciary Committee version, which is amnesty-free; that will happen around 11am PT. This and all amendments apparently will only need 50 votes, and according to the Majority Leader, if the Republicans want a higher threshold through a filibuster, they're going to have to do a real one. So we're looking at 50-vote thresholds for everything.

However, Reid is still making it easier for amnesty to come out of the Senate, because such a filibuster demand cuts both ways.

At issue is the likely passage of a version of FISA that contains retroactive immunity over one that doesn't. Reid has said he supports the former, but legislatively, the path has been paved for the passage of the latter. In addition, there is debate over an amendment offered by Sen. Chris Dodd, to strip immunity from any FISA bill. If that fails -- and it seems likely -- Dodd has threatened to filibuster the whole bill. On Wednesday, Reid was interpreted as saying any such filibuster will be the standing and talking variety as opposed to an agreed-upon 60-vote minimum threshold. Feingold, who supports Dodd's stance, took slight issue with that approach.

"We should have a normal process were this is debated based on a majority vote in the senate," said the Wisconsin Democrat. "That's the way it should have been done and I regret that it's not being done that way. Of course, I support Senator Dodd. He and I were principally involved in making sure this didn't get jammed through before the holidays and I will be supporting him again. But this decision does make it harder."

And if you thought that the two vying for leadership of the party will offer anything more than lip service, think again.

He was also happy to have the support of both Sen. Barack Obama and Sen. Hillary Clinton. The two Democratic frontrunners have said they oppose retroactive immunity. But, with the primary season heating up, it is unlikely they will offer anything more than rhetorical assurances.

"I'd love to have them back," said Feingold. "But it is not my job to tell them what to do on their campaigns. My understanding is that both of them have indicated support for what Senator Dodd and I are doing. So that's good. If we see real opportunity for a vote we can win, then yes. I would love to have them back."

Feingold's statement in support of the Judiciary Committee version of the bill is here. Reid is taking significant heat for his stance on the bill from back home. It's unclear whether or not this will change his thinking.

It doesn't look like any of the amendments have the votes to pass, even on a majority vote. The one that has a chance of passage is Dianne Feinstein's "good faith" amendment, which would allow the FISA court to do judicial review to see if the phone companies should be granted amnesty for lawbreaking. Upon closer inspection, this would be a tragic mistake.

It's bad enough that she wants a secret court, which average Americans like you and I don't have the right to access, to determine whether our basic legal rights and privacy protections are valid. What's worse is the underlying reasoning she is using. Feinstein believes that all the telecoms and the Bush administration have to show the FISA court would be that they acted in "good faith" - and voila, the telecoms are immune.

Although the first test asks whether the telecoms' assistance to the NSA "met the legal requirements," under Feinstein's amendment immunity could be granted if it passes the second test - "good faith" - even if the telecom in question did not pass the first test. As the senator explains (italics mine):

"If the FISA Court determines that the company did not provide assistance, or that the assistance provided met the legal requirements or was reasonable and in good faith, the immunity provision would apply."

So as long as the stupid ol' phone companies, who don't have access to lawyers or a copy of the Bill of Rights, apparently, were told that they were operating in "good faith" by the federal government, they'd be off the hook. And of course, that means that the government itself is off the hook, since the telecom lawsuits are really the only legitimate way to determine the breadth of the spying. A "good faith" alibi is no different than saying "I was just following orders." It should not meet the requirement of the American system of justice.

Feinstein's amendment sets a very, very bad precedent. It would allow lawbreaking by telecom companies merely because they followed a presidential order, regardless of whether the order was lawful. It denies Americans their fundamental legal rights to defend their rights in a public court. And it potentially would give Bush himself immunity, not just the telecoms.

Call your Senator and tell them that unless they advocate anarchy, they need to report out a bill that does not give immunity willy-nilly to any organization that is told by the executive branch to break the law. The numbers are here.

UPDATE: Apparently Jay Rockefeller considers the telecom agencies as "we," e.g. "We're going to win". Nice.

UPDATE II: This is not good news. The White House has relented and allowed any House Intelligence or Judiciary committee member to view the warrantless wiretapping documents including the legal underpinning for the President's program. This was seen as a prerequisite by those House committees to allowing amnesty to go forward. They're still not giving most House members or most Senators access to those documents. So it seems that the bargain is in the midst of being made. As long as these House committees get to see how the President broke the law, they'll give him amnesty for him and his telecom buddies for doing so.

UPDATE III: MoveOn would like you to make a call to our Presidential candidates and tell them they are needed back in Washington to lead.

Senators Barack Obama and Hillary Clinton have both said they oppose this immunity bill4, but now is a time we need real leadership. Senators Obama and Clinton have enormous influence with Democrats right now—if they helped lead a filibuster against this bill, other Senators would take notice and the public would see Democrats showing principle and backbone.

Can you call Senator Barack Obama today? (Others will call Clinton.) Tell him we need his leadership to help block immunity for phone companies that helped Bush break the law. Here's the number to call: (866) 675-2008.