I wrote Harry Reid’s office earlier today and implored him not to make any deal with Mitch McConnell that didn’t include a straight-up majority vote on four amendments: revoking immunity (Feingold/Dodd), Prohibiting “Bulk Collection” (Feingold), on Use Limits (Feingold), on Reverse Targeting (Feingold). And, guess what? Reid did not disappoint me.
The Republicans basically caved. Reid has hammered out an Unanimous Consent (UC) agreement, which means that all 100 senators have signed off on the process. There will be no filibusters except, perhaps, on final passage. There are two categories of amendments (those that require a simple majority to pass, and those that require 60 votes to pass). Per Reid’s office, here is the breakdown.
Here are the amendments that are subjected to simple majority:
* Striking Immunity (Feingold/Dodd)
* Sequestration, i.e. use limits (Feingold)
* Bulk collection (Feingold)
* Reverse targeting (Feingold)
* Substitution (Whitehouse-Specter)Here are the amendments that are subjected to super majority (ed. note: actually, 60 votes are required, not 67):
* Minimization (Whitehouse-Rockefeller-Leahy-Schumer)
* Sunset Provision (Cardin)And here are the amendments that the Republicans have agreed to include as part of the base bill (they will be included in the bill as modified agreements):
* Access to Ct Documents (Feingold)
Also the exclusivity amendment may be accepted as part of the base bill but if not will get a vote – tbd if 50 or 60. (ed. note: Congressional Quarterly is reporting that this vote will require 60 votes).
BRIEF DESCRIPTION OF AMENDMENTS:
Subject to Simple Majority/Up or Down Vote
Striking Immunity – 51
This will eliminate telecommunications corporation retroactive immunity (Feingold/Dodd)
Sequestration – 51
Prohibit the use of illegally obtained information. Democrats have an amendment that would create an incentive for the government to adhere to FISA guidelines by limiting the government’s use of illegally gathered information on U.S. persons, unless it is determined by the FISA Court that the information indicates a threat of death or serious bodily harm or the government has amended its defective procedures to conform with the law. (Feingold)
Bulk collection – 51
Limit “bulk collections.” Democrats have an amendment that would prevent the government from authorizing “bulk collections,” such as all communications between the U.S. and the rest of the world. While absurd and of questionable constitutionality, such collections may be permissible under current law. This amendment would limit the opportunity for abuse by requiring the government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest. (Feingold)
Reverse targeting – 51
Require a warrant when targeting U.S. persons. Democrats have an amendment that would prohibit warrantless reverse targeting by requiring a FISA Court order for surveillance of a foreign person where the “significant purpose” of the collection is to target a U.S. person located in the United States. (Feingold)
Substitution – 51
Provide an alternative to blanket immunity for telecommunication companies. Democrats have an amendment that would substitute the government for telecommunication companies being sued for their participation in the warrantless wiretapping program, but only if the company is first determined by the FISA Court to have cooperated with the Bush Administration reasonably and in good faith. Plaintiffs would be entitled to appear before the court as well, and if the court found that the company did not act reasonably and in good faith, the company would remain in litigation and not be substituted. This approach strikes a balance between the “full immunity” approach, which would rob plaintiffs of their day in court, and the “no immunity” approach, which may unfairly punish companies who relied upon the Bush Administration’s claims that the warrantless wiretapping program was legal. Moreover, this approach places the primary responsibility for any wrongdoing where it belongs: with the Bush Administration. (Specter-Whitehouse)
Subject to 60 Vote Requirement
Minimization – 60
Meaningful oversight of intelligence activities. Democrats have offered an amendment that would grant the Foreign Intelligence Surveillance Court the discretionary authority to not only approve minimization rules but to review their implementation. The SSCI bill only grants the Court authority to do the former. The minimization compliance review amendment would ensure the meaningfulness of rules approved by the FISA Court to protect Americans whose communications are incidentally picked up by the intelligence community while conducting foreign surveillance by ensuring that those rules are followed. (Whitehouse-Rockefeller-Leahy-Schumer)
Sunset – 60
Ensure the timely review of expanded authorities. Democrats have an amendment that would shorten the sunset of the FISA Amendments bill from six years to four years, ensuring that future Presidents and Congresses’ have an opportunity to review the need for and effectiveness of these authorities. (Cardin)
Amendments Accepted As Part Of the Base Bill (No votes will be necessary)
FISA Court docs – accepted as modified
Access to FISA Court documents. Democrats have an amendment that would require that Congress be given timely access to FISA Court pleadings, opinions, and decisions that contain significant interpretations of law, retroactive five years. The SSCI bill mandates congressional access going forward, but does not require access to previous documents. (Feingold)
May be accepted as part of the base bill if not will get a vote (tbd 50 or 60) (Ed. note: again, Congressional Quarterly is reporting that this will require 60 votes).
Exclusivity of FISA. Democrats have an amendment that would reiterate Congress’ original intent that FISA be the exclusive means for conducting electronic surveillance. The amendment would reject the President’s now discredited argument that the 2002 Authorization for Use of Military Force against al Qaeda and Taliban granted him authority for warrantless wiretapping outside the parameters set forth in FISA and affirmatively state that only an “express statutory authorization” would create an exception to FISA. (Feinstein)
I’ll follow this up with analysis in a bit. The debate will start on Monday.
