The Consortium Report
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First Big FISA Vote

by Brian Beutler, The Media Consortium: Thu., Jan 24, 2008
Filed under: Congressional Oversight

After hours and hours of bickering, the first FISA vote (on whether to table the Senate Judiciary committees bill–the one that doesn’t include blanket immunity) is under way. Republicans need a simple majority to succeed–there will be no filibuster threats, only real filibusters–and they have the help of Senate Intelligence committee chair Jay Rockefeller. If Republicans do succeed, and the Judiciary bill fails, then the Senate will consider the Senate Intel bill, with Dodd and Feingold offering their amendments (including one that would strip it of the immunity provision).

Fortunately, those too will only require 51 votes. Contrary to earlier reports, it’s not Dodd who will have to filibuster–it’s Republicans who don’t like Dodd’s amendments. This is a change of course progressives have been waiting for–both as concerns FISA, and as concerns the greater Senate–for quite some time.

Of course, this is the Senate, and who’s really to say what arcane procedural hurdles lay ahead. So stay tuned. I’ve posted a list of coming Feingold amendments below.

Update The clerk has just announced that on a 60-34 vote, Judiciary FISA has been tabled.

Dodd-Feingold Amendment Stripping Retroactive Immunity
Along with Senator Chris Dodd, Senator Feingold will offer an amendment to strike Title II of the Intelligence Committee bill, which provides immunity to telecommunications companies that allegedly cooperated with the President’s illegal warrantless wiretapping program.

Feingold-Webb-Tester Amendment to Provide Protections for Americans
Senator Feingold intends to offer an amendment along with Senators Jim Webb and Jon Tester to allow the government to get the information it needs about terrorists and purely foreign communications, while providing additional checks and balances for communications involving Americans. Under the Intelligence Committee bill, many law-abiding Americans who communicate with completely innocent people overseas will have their communications swept up, with virtually no judicial involvement or oversight.

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.

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.

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 particular country, or 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.

Giving Congress Access to FISA Court Materials
This amendment assists Congress in its legislative and oversight functions by requiring that Congress be provided timely access to FISA court pleadings related to significant interpretations of law, which may be necessary to understand the court’s rulings, as well as past FISA court orders containing such interpretations. The amendment was part of the bill reported by the Judiciary Committee and is based on language approved on a bipartisan basis by the Intelligence Committee when Senator Feingold offered it as an amendment to the intelligence authorization bill.

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