FISA Update

So last night, an agreement was reached on various amendments for the FISA bill going forward. This already was a lost cause. It's important to note that, once the Judiciary Committee bill was struck down and the Intelligence Committee bill became the base bill, it was going to be incredibly difficult to change it. We're left with a group of amendments that are set to just fail, so we can all say we gave it our best shot. Also, the debate will happen over Monday and Tuesday, when two Senators will be out collecting votes on Super Tuesday and can't possibly be expected to return to Washington. So even those that need 50 votes would be defeated on a party-line vote, and it's highly unlikely that you'll get as many Republicans as you would need. Glenn Greenwald explains in a bit more detail.

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 [...]

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?

The design here is to give Dick Cheney everything he wants. And in a supreme irony, if they don't get everything, they will expose the country to what they consider to be a great danger.

President Bush has put protecting the telecom giants from the laws… ahead of protecting you from the terrorists.

He has demanded an extension of the FISA law — the Foreign Intelligence Surveillance Act — but only an extension that includes retroactive immunity for the telecoms who helped him spy on you.

Congress has given him, and he has today signed a fifteen-day extension which simply kicks the time bomb down the field, and has changed nothing of his insipid rhetoric, in which he portrays the Democrats as ’soft on terror’ and getting in the way of his superhuman efforts to protect the nation… when, in fact, and with bitter irony, if anybody is ’soft on terror’ here… it is Mr. Bush.

In the State of the Union Address, sir, you told Congress, “if you do not act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger.”

Yet you are willing to weaken that ability!

You will subject us, your citizens, to that greater danger.

This, Mr. Bush, is simple enough even for you to understand: If Congress approves a new FISA act without telecom immunity and sends it to your desk and you veto it — you, by your own terms and your own definitions, you will have just sided with the terrorists.

What the Democrats should have done in response to this fearmongering is simply let the Protect America Act expire, add a patch to FISA for foreign-to-foreign communications, let the irrelevant President howl and scream, and leave it at that. But they continue to be afraid of their own shadow and backed into a corner, and now they've basically given themselves an out through this "deal" whereby a bunch of votes are taken, the Republicans hold strong on votes that even have majority support, and the Intelligence bill comes out of the Senate basically looking the same. There are a couple of flies that we still have a chance to put into the ointment, but I'm pessimistic. Emptywheel sets the scene.

IMO, there are three votes that we may be able to affect in the limited time we've got:

Get the votes for exclusivity
While it seems innocuous, this amendment is fundamentally a fight for basic separation of powers. If there are any real limits put on wiretapping, Bush will be inclined to go his own route, declare that under Article II he can do whatever he wants, and declare his ability to wiretap outside of FISA. This amendment basically says, "George Bush, this is the law, and you have to follow it." Many Republicans see this amendment as an assault on their little unitary executive theory. So it needs to be a priority.

The amendment already has three Republican co-sponsors (Hagel, Snowe, and Specter), plus Jello Jay. We need to keep the Dem turncoats (Ben Nelson, Mary Landrieu, Mark Pryor, in particular), get Lieberman, and get several more Republicans to make sure this passes. Some Republicans to focus on are Sununu, Voinovich, Smith, Coleman, Dole, and Collins.

Pressure for minimization
I'm not sure yet what the 50-vote sequestration amendment is, but Whitehouse's minimization amendment very simply gives a court the ability to make sure the government does what they say they're doing. This is the amendment that will prevent them from saving your data until such time as they decide that they want to use it--and the amendment that will prevent them from spying on journalists because they speak to people associated with terrorism. It is the amendment that would do the most to prevent the government from abusing its ability to wiretap going forward.

You'd want to call the same people as you would for the DiFi exclusivity amendment, as well as anyone with a libertarian streak. Republicans always support minimization in theory (because it's the only thing reining big government), we need to press them to do it in fact.

Lobby for immunity
I am absolutely pessimistic that we'll be able to reject immunity outright. We're almost certainly at least 5 votes short of doing that, and probably about 5 votes short of passing DiFi's much more conservative FISC option. But if we do our job well enough on immunity proper, than we might generate more votes in favor of DiFi's amendment, and we might pull votes off the vote for the overall bill.

Plus, we need to make this a costly vote for the authoritarians. This is about whether the rule of law takes precedence over covering up for Dick Cheney. That line might be useful in defeating people like John McCain and Norm Coleman come November.

That's about the best we can do at this point. So call your Senators because it's important. Tell them you like your civil liberties just fine and want to keep them that way. Pessimism is no excuse for inaction. Plus a good showing on this fight will be important as we head into the conference report; remember, the House passed a bill without immunity and appears pretty adamant on that score.