Update [2008-1-28 14:51:17 by BooMan]: I originally wrote this on Friday, but it is still relevant for today. They are debating in the Senate right now and Arlen Specter just indicated that he will vote against cloture. So, I think we will win the cloture vote. Read on to see what the next steps are.]
Here, as best as I understand it, is where we stand on the FISA bill. Yesterday the Senate voted 60-36 to table the Senate Judiciary Committee’s version of the bill. That put the Senate Select Committee on Intelligence’s bill (SSCI bill) back on the docket. However, a slightly different bill (Amendment No. 3911), sponsored by Jay Rockefeller and Kit Bond (the Intelligence Committee chairman and ranking member, respectively), was introduced as a complete substitute. The Rockefeller-Bond bill is the bill that is pending in the Senate right now.
The Democrats (and some Republicans) attempted to introduce amendments to the Rockefeller-Bond bill but the Republicans refused to grant unanimous consent, which is a requirement in the Senate in order for things to proceed. Then, minority leader Mitch McConnell filed for cloture, which is an effort to cut off all debate including any debate over amendments. Essentially, McConnell wants an up or down vote on the Rockefeller-Bond bill as is. McConnell’s cloture vote is scheduled for 4:30 pm on Monday, just a few hours before the State of the Union address. Perhaps the Republicans think this will pressure the Democrats into caving in and voting for cloture. And, while you should all call your Senators and beg them not to vote for cloture, it is unlikely that the Democrats will do so. Even Jay Rockefeller released a statement last night saying that he would not vote for cloture under these circumstances that would deny his colleagues an opportunity to debate or introduce amendments.
So, let’s look at the next step, assuming cloture is not invoked on the Rockefeller-Bond bill on Monday at 4:30 pm. There are three pending amendments (aside from the Rockefeller-Bond bill itself, which is technically an amendment to the underlying SSCI bill).
FEINGOLD/DODD Amendment No. 3909 (to Amendment No. 3911), to require that certain records be submitted to Congress; see CR Pages S258-60
BOND Amendment No. 3916 (to Amendment No. 3909), of a perfecting nature; see CR pages S260-71
REID Amendment No. 3918 (to the language proposed to be stricken by Rockefeller/Bond Amendment No. 3911), relative to the extension of the Protect America Act of 2007; see CR Page S302
The Feingold/Dodd amendment is some pretty weak tea. It is not among the ACLU’s top three priorities (even among just proposed Feingold amendments). The Bond Amendment is just a way of butchering the Feingold/Dodd amendment. And the Reid amendment would extend the Protect America Act of 2007 for 30 days, rather than letting the law expire.
The ACLU’s top three priorities (per a telephone conversation) are all amendments that are not currently pending. These are:
1. Prohibiting “Bulk Collection”
Senator Feingold successfully offered this amendment in the Senate Judiciary Committee to prohibit “bulk collection” — the collection of all international communications into and out of the U.S to a whole continent or even the entire world. Such collection without a foreign intelligence purpose would be constitutionally suspect and would go well beyond what the government has says it needs to protect the American people. Yet, the Director of National Intelligence testified at a Senate Judiciary Committee hearing that the Protect America Act – which was enacted last year — permits “bulk collection.” The amendment makes clear that bulk collection is not authorized by requiring the government to certify that it is collecting the communications of foreign targets from whom it expects to obtain foreign intelligence information.
2. Use Limits Amendment
This amendment, which was part of the Senate Judiciary Committee version of the FISA bill, gives the FISA Court discretion to impose restrictions on the use of information about Americans that is acquired through procedures later determined to be illegal by the FISA court. This enforcement mechanism is needed because the government can implement its procedures before it has to submit them to the FISA Court for review to determine whether they are reasonably designed to target people overseas rather in the United States.
3. Prohibiting “Reverse Targeting”
Senator Feingold successfully offered this amendment in the Judiciary Committee to add a meaningful prohibition on “reverse targeting,” a practice by which the government gets around FISA’s court order requirement by wiretapping an individual overseas when it is really interested in a person in the U.S. with whom that supposed foreign target is communicating. The Director of National Intelligence has agreed that “reverse targeting” is unconstitutional. Senator Feingold’s amendment requires the government to obtain a court order whenever a significant purpose of the surveillance is to acquire the communications of an American.
A Monday vote for Mitch McConnell’s cloture would prevent the introduction of any of these three amendments…never mind telecommunications immunity. So, when you call your Senators, make sure to remind them that you want these amendments debated and passed.
Ironically, the Republicans could have won a pretty big victory yesterday. They had the votes to keep telecom immunity in any final bill and they had the votes to overcome Dodd’s filibuster. But that, apparently, wasn’t good enough for them. They were afraid that some of Feingold’s amendments would pass. Or, maybe they were afraid that Feinstein and Specter would succeed in substituting the Federal Government for the telecom corporations as the defendants in the civil complaints about privacy violations. Either way, the Republicans chose a very heavy handed strategy that is likely to buck up the Democrats’ resolve to let FISA lapse (or be extended) without the changes the president wants.
Right now the battle is over Monday’s cloture vote, but if (once) we succeed on preventing cloture, there will be other battles. One will be the votes on the these various amendments. We will want to call our Senators and voice our support (or opposition) to the amendments.
Right now there is no agreement between Reid and McConnell over the number of amendments that will be allowed. They may work out a deal on that this weekend (they certainly have a powerful incentive to do so), but we have no clue which amendments will be debated. (Maybe call Reid this weekend and tell him you want those three (above) Feingold amendments included, as well as one to ban telecom immunity.
There are four possibilities, and here they are in terms of preference.
1. The Senate cannot agree to anything, the Republicans will not pass an extension, and the PAA 2007 lapses, leaving the old FISA law in place.
2. The Senate cannot agree to anything, so they pass an extension, and we refight this in a month.
3. The Senate passes a bill, and we help make it the best bill we can under the circumstances by passing amendments (including, hopefully, no immunity for lawbreakers).
4. The Democrats completely cave and pass the Rockefeller-Bond bill with no amendments and no debate.
Obviously scenario three comes with some risks. What if the bill includes telecom immunity? Can the House/Senate conference fix that? What if Feingold’s amendments don’t pass, or not enough of them pass? We all expect the president to veto any bill that doesn’t meet his requirements (including telecom immunity) but it’s possible that he would sign a bill we thought was poisoned and enact a new FISA law that is pretty disastrous.
So, keep your head on a swivel, and keep making those calls.
