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Dodd and Feingold on FISA

by Brian Beutler, The Media Consortium: Wed., Jun 25, 2008
Filed under: Congressional Oversight

Last night, Chris Dodd took to the floor of the Senate and made an impassioned plea to his colleagues not to support the House FISA legislation. The video, and text are available here.

Earlier today, Russell Feingold followed suit, in words that echoed his remarks in response to my question at a New America Foundation event on Monday. Here’s a snippet:

This legislation has been billed as a compromise between Republicans and Democrats. We are asked to support it because it is a supposedly reasonable accommodation of opposing views. Let me respond as clearly as possible: This bill is not a compromise. It is a capitulation. This bill will effectively and unjustifiably grant immunity to companies that allegedly participated in an illegal wiretapping program — a program that more than 70 members of this body still know virtually nothing about. And this bill will grant the Bush administration — the same administration that developed and operated this illegal program for more than five years — expansive new authorities to spy on Americans’ international communications. If you don’t believe me, here is what Sen. Bond had to say about the bill: “I think the White House got a better deal than even they had hoped to get.” And House Minority Whip Roy Blunt said this: “The lawsuits will be dismissed.” There is simply no question that Democrats who had previously stood strong against immunity and in support of civil liberties were on the losing end of this backroom deal.

I think it’s safe to say that even many who voted for the Protect America Act last year came to believe it was a mistake to pass that legislation. And while the House deserves credit for refusing to pass the Senate bill in February, and for securing the changes that are in this new bill, this bill is also a serious mistake…Mr. President, the immunity provision is a key reason for that. It is a key reason for my opposition to this legislation and for that of so many of my colleagues and so many Americans. No one should be fooled about the effect of this bill. Under its terms, the companies that allegedly participated in the illegal wiretapping program will walk away from these lawsuits with immunity. There is simply no question about it, and anyone who says that this bill preserves a meaningful role for the courts to play in deciding these cases is wrong…But I’m concerned that the focus on immunity has diverted attention away from the other very important issues at stake in this legislation. In the long run, I don’t believe this will be remembered as the ‘immunity’ bill. This legislation is going to be remembered as the legislation in which Congress granted the executive branch the power to sweep up all of our international communications with very few controls or oversight.

On the other hand, moments ago Diane Feinstein just announced that she’s read the Department of Justice’s legal memos, the written requests from the White House to the telecommunications firms, and met with representatives from those firms, and after contemplating that balanced body of information, has decided to support the legislation.

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The FISA Saga Continues

by Brian Beutler, The Media Consortium: Tue., Feb 12, 2008
Filed under: Congressional Oversight

The vote just came down. The FISA Amendments Act passed 68-29. What follows will no doubt be a grueling battle in a conference committee between the House and the Senate. Among those on hand will (most likely) be the chairmen of the four committees (the Senate and House Judiciary and Intelligence committees) with jurisdiction over FISA, three of whom are philosophically much closer to the House bill than the Senate bill. At that conference, for all intents and purposes, one of several things can happen: The senators will accept the House language (unlikely), the representatives will adopt the Senate language (slightly more likely) or a new bill, using language from both bills, will emerge (quite likely). That bill would have to be passed by both houses.

The problem is that getting a Senate-like bill through the House will be much easier than getting a House-like bill through the Senate–According to Senate Minority Leader Mitch McConnell, 21 Blue Dog Democrats have sent a letter to Speaker Pelosi endorsing the Senate bill. House leadership can stick to its guns and say “no way” to the radical Senate provisions, but time is running out on the 15-day extension to the old amendments, and doing nothing will touch off the sort of national security fight that Democrats have been avoiding for the entirety of the 110th Congress. Unless they find that willingness, it looks very much as if a fairly terrible piece of legislation will ultimately be signed into law.

There are a few positive developments. House Judiciary Committee chairman John Conyers has sent White House Counsel Fred Fielding a letter saying that the documents the administration has provided thus far do not justify retroactive immunity.

I am writing to follow up on previous letters and requests of January 5, 2006, February 8, 2006, July 30, 2007, September 11, 2007, October 15, 2007, and October 16, 2007, requesting information and documents from this Administration concerning the warrantless surveillance program, known as the terrorist surveillance program (TSP), first disclosed by the New York Times on December 16, 2005, and related matters. Although some of the requested materials have been provided to some Judiciary Committee members, much of the information has not, and it is crucial that this material be produced as promptly as possible so that Congress may fulfill its legislative and oversight responsibilities. Indeed, review and consideration of the documents and briefings provided so far leads me to conclude that there is no basis for the broad telecommunications company amnesty provisions advocated by the Administration and contained in the Foreign Intelligence Surveillance Act (FISA) bill being considered today in the Senate, and that these materials raise more questions than they answer on the issue of amnesty for telecommunications providers. In order to more fully understand and react to the Administration’s request for broad-based and retroactive amnesty for telecommunications firms, who may be in a position to divulge information concerning misconduct by Administration officials, it is imperative that your provide this information to us as promptly as possible, as we have been asking for many months on numerous occasions.

Additionally, Senate Judiciary Committee Chairman Patrick Leahy seems to be extremely upset about the treatment he and his committee have received from Intelligence Chair Jay Rockefeller and the Republican leadership–and as such he also have come into full support of Chris Dodd and Russell Feingold’s efforts. He will likely be part of the conference committee. Meanwhile, Dodd himself has indicated that he’ll filibuster any bill that emerges from the conference committee if it contains the immunity provision. So there’s plenty more to come.

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New Twists in the FISA Fight

by Brian Beutler, The Media Consortium: Mon., Feb 11, 2008
Filed under: Congressional Oversight

Tomorrow at 10 am, votes on amendments to FISA will continue. When they’re all done with those, there will be a cloture vote. The agreement Dodd made with Senate leadership was such that he’d drop his bid to block any votes on FISA amendments as long as the key amendments were held to a simple-majority threshold. But he still plans to vote against cloture (and rally his colleagues to vote against cloture) if the bill contains the retroactive immunity provision. In an interesting twist, he now has the support of Sen. Patrick Leahy (D-Vt.), who chairs the Judiciary committee (also known as the committee that penned the superior, competing legislation that has basically been all but blocked from consideration. This in from Leahy’s leadership office:

Tuesday is a critical day in our fight to stand up for American values and preserve our freedoms while protecting our national security.

Tomorrow the Senate will vote on amendments to FISA, the Foreign Intelligence Surveillance Act, the law governing the use of wiretaps and other means to conduct surveillance of foreign threats.

Unfortunately, the new FISA bill we’ll be voting on Tuesday still has many problems. I will do everything in my power — including joining my colleague Chris Dodd in a filibuster against this legislation — to fix it.

Now I need your help to encourage more of our House and Senate colleagues to stand with us.

Leahy has some influence. But Republicans and Jay Rockefeller need 60 ayes to get this bill to the floor for a final vote. Assuming everybody’s on hand tomorrow, this means Dodd, Feingold, and Leahy need to rally 41 people to their side. And that won’t be easy.

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FISA Compromise

by Brian Beutler, The Media Consortium: Fri., Feb 1, 2008
Filed under: Congressional Oversight

They’ve reached a deal, and here’s how things will shake out:

Next week, perhaps Monday afternoon, debate will resume on FISA, and as part of a unanimous consent agreement, there will be an up-or-down, simple majority vote on several extremely important amendments. Some of those are:

  • The Feingold/Dodd immunity-stripping amendment
  • The Whitehouse/Specter substitution amendment, which would make the U.S. government–as opposed to a telecommunications company–the defendant in any lawsuit, provided that the FISC (after reviewing both sides of the case, including plaintiff testimony) has determined that the company acted in good faith
  • The Feingold sequestration amendments, prohibiting the use of illegally acquired surveillance information
  • The Feingold limitation on bulk surveillance, which would require the government (through the Attorney General and the Director of National Intelligence) to certify to the FISC that its surveillance activity is of foreign-intelligence interest
  • The Feingold prohibition on warrantless reverse targeting–specifically requiring authorization for surveillance of a foreign target when the goal of that surveillance is to acquire information about an American contact
  • A Bond amendment, waiving the need for a warrant for any surveillance meant to curtail WMD proliferation

Other amendments will require 60 votes.

  • The Cardin amendment to sunset the FISA Amendments Act after four, instead of six, years
  • The Feinstein exclusivity amendment, which seeks to ensure that FISA alone (and not, say, the congressional authorization for the use of military force, or any other broad provision of law) is the exclusive means by which the government can conduct electronic surveillance
  • The Whitehouse/Rockefeller/Leahy/Schumer minimization compliance review amendment, which would give the FISC the authority not just to approve of minimization procedures (which the Intelligence Committee bill already would have allowed) but also to review their implementation. (Minimization is the procedure by which non-pertinent information swept up in the course of legal surveillance is stripped of identifying information and removed from the intelligence-gathering process.)

Accepted, too, as part of the base bill is a provision that Congress be provided court data (opinions, rulings, etc.) for any FISA case that involved a “significant interpretations of law” retroactive five years. (The original Intelligence committee bill contained the provision sans retroactivity.) Not all of these will pass. In fact, it appears quite likely that several of these bars were set where they were set to prevent many changes from being adopted–that is, most of the amendments looking at simple-majority votes don’t stand much chance of winning simple majorities, and the amendments requiring 60 votes most likely don’t quite have 60 votes. But the situation’s always changing and more information will be forthcoming, I’m sure. Look to Monday.

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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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FISA Debate Begins

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

The key senators (Reid, Leahy, Rockefeller, and Republican counterparts) are now taking turns making opening statements before debate over amendments begin. Keeping telecom immunity out of this thing will be difficult, but will ultimately depend on Dodd enjoying the support of many of his allies. If they succeed, then the bill will have to be revised and will meet with all sorts of objections from the GOP. All this will happen with the February 1st Protect America Act expiration looming in the background.

If Dodd et al fail, then some sort of immunity provision will remain in the bill. Either way it promises to be a long day or series of days.

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FISA Update

by Brian Beutler, The Media Consortium: Wed., Jan 23, 2008
Filed under: Congressional Oversight

Today, Mitch McConnell blocked (for the second time in about a month) Harry Reid’s efforts to secure a one month extension for the Protect America Act. That, you’ll recall, was the six-month bill passed hastily last August by the Congress which made FISA even more unclear than it already was, and increased in a number of ways the threat it poses to the civil liberties of American citizens.

The sunset kicks in just over a week from now, and it seems incredibly unlikely that a replacement bill (one that suits both Republicans and progressives in the Senate, and that’s easily reconciled with the House legislation) can be teased through the sausage-making process in time. And as such, this may well turn into a couple of very public, and highly-spun battles–one between the two parties and one within the Democratic party, when, under pressure by the GOP to pass a White House friendly bill, Harry Reid and others square off against Chris Dodd and the handful of progressives in the caucus who remain unwilling to give the White House everything it wants.

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A Rare Victory

by Brian Beutler, The Media Consortium: Mon., Jan 14, 2008
Filed under: Congressional Oversight

With Congress set to reconvene in earnest next week, we’ll know shortly whether this report is accurate:

Senator Chris Dodd’s Presidential campaign died with a whimper in Iowa. But he still seems to be dictating national security policy to fellow Democrats on Capitol Hill, and unless the Bush Administration is willing to fight, perhaps to the next President too.

We’re told that Senate Majority Leader Harry Reid is saying privately he now won’t attempt to update the 1978 Foreign Intelligence Surveillance Act (FISA) on the wiretapping of al Qaeda suspects. Instead, he’ll merely support another 18-month extension of the six-month-old Protect America Act. Among other problems, the temporary bill includes no retroactive immunity for the telecom companies that cooperated with the feds after 9/11.

It would certainly a victory for Dodd–he promised to block any bill that offered immunity to communications companies, and we’ll find out soon enough if he’s really succeeded. But though the Protect America Act doesn’t pardon the telecoms, it did contain a host of others provisions that Democratic leaders in the House sought to undo when they passed the RESTORE Act this fall. One dangerous example is a vague bit of language that allows the White House to conduct wiretapping without a warrant whenever a suspect is “reasonably believed” to be outside the United States. Many worry that it’s “unreasonable” to leave standards for “reasonableness” up to these guys.

Now RESTORE is likely to be scuttled, too. Precluding an imbroglio between the White House and Senate Democrats about the amendments Dodd is blocking, that’ll still leave the president with some fairly extraordinary powers for the rest of his term. And it’ll leave the next president–Democrat or Republican–about six months to grow accustomed to the taste of the exact same powers. So the other important issue–whether the provisions that most endanger American civil liberties will be made permanent–has yet to be truly resolved. The reaction on the right? Predictable.

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Off the Trail, and on the Warpath

by Brian Beutler, The Media Consortium: Sat., Jan 5, 2008
Filed under: Congressional Oversight

Chris Dodd said last night he’s done with presidential politics, for now. But he’s just getting started on stopping the Dems from compromising away Americans’ civil liberties.

By Brian Beutler
The Media Consortium

It turns out Senate Majority Leader Harry Reid was half right. After a poor showing in Iowa last night, Sen. Chris Dodd, D-Conn., dropped his bid to be the Democratic nominee for president–and, as such, will not be captive to the pander-inducing whims of electoral politics when the Foreign Intelligence Surveillance Act is reconsidered later this month. But that doesn’t mean he won’t be back on the floor of the Senate blocking any FISA bill that contains an immunity provision for the telecommunications industry. Here’s what he said in his concession letter: Read the full report…

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What’s Next for FISA?

by Brian Beutler, The Media Consortium: Wed., Jan 2, 2008
Filed under: House Oversight Committee ReportsHouse Judiciary Committee Reports

Where we’ve been, and where we’re going, in the long, sordid saga of keeping Americans safe from the administration’s spying.

By Brian Beutler
The Media Consortium

The first year of the 110th Congress closed with a great deal of spilled blood, and few victories for liberals. In just the last weeks of the past session, Democrats fought a series of gladiator battles over issues like energy, the Iraq war, and government spending—and lost every one of them in the Senate. But on the one issue that Democrats had by-and-large decided to cede to their opponents, they were … still unable to get very far. Read the full report…

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