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The Consortium Report
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Senate Leader Reid: No “Mad Rush for Immunity”


by addiestan, The Media Consortium: Mon., May 12, 2008
Filed under: Congressional Oversight


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In a meeting this morning with reporters and bloggers, Senate Majority Leader Harry Reid (D-Nev.) signaled that civil libertarians may have less to fear than expected from a surveillance bill currently being negotiated in a conference of House and Senate committees.

Reid made the remarks during a meeting with reporters in the U.S. Capitol building, in answer to my question about current negotiations between House and Senate committees on legislation governing wiretapping in terrorism investigations. The legislation would renew post-9/11 amendments to the Foreign Intelligence Surveillance Act (FISA) that expired last year. At issue between the House and Senate bills is the question of retroactive immunity from prosecution for telecom companies who provided customer data to the government, without a court order to do so.

Earlier this year, the Senate passed a version of the legislation, known as the Protect America Act, that provided immunity to the telecoms, effectively shielding from scrutiny government officials who ordered the collection of such data. Critics contend that the immunity provisions in the Senate bill ultimately protects President George W. Bush and Vice President Richard B. Cheney from prosecution for civil rights violations. The House version confers no such immunity. The Senate bill also grants, with little judicial involvement or oversight, for widespread surveillance involving Americans. The conference committee is working to reconcile the two versions.

Even though the Senate version contains the immunity language, Reid’s heart, he says, is in another place. “I personally don’t believe that the phone companies should have immunity,” he told reporters, “and I certainly don’t believe that Bush and Cheney should have immunity.”

When the House passed a version of the bill that failed to include the immunity provisions, President Bush accused House Democrats of leaving the United States vulnerable to attack by terrorists. “Everyone was in a panic,” Reid said. “If we didn’t pass FISA…the world was going to fall apart — and it didn’t.” Because of that, Reid said, “I think the mad rush for immunity is not as intense as it was.”

Critics of the bill, such as leaders of the American Civil Liberties Union (ACLU), have suggested that Sen. Jay Rockefeller, who leads the negotiations for the Senate bill, was ready to side with the administration on the matter of immunity for telecom companies. Reid appeared to suggest this is not necessarily the case.

Until the legislation is passed, wiretapping on matters concerning foreign intelligence is governed by the FISA law as it was written in 1978.

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FISA Update


by Brian Beutler, The Media Consortium: Mon., Feb 4, 2008
Filed under: Congressional Oversight

Harry Reid is steaming on the floor of the Senate right now. Why? Because Mitch McConnell is using one of his procedural prerogatives to devote the next 30 post-cloture hours debating the fiscal stimulus package. What does this have to do with FISA? Well, that’s 30 hours that the Senate would otherwise spend debating FISA amendments. And time–specifically, the 15-day extension to the old FISA amendments–is running out. Anything the Senate passes has to be reconciled with the House’s RESTORE Act, then passed again, probably by both houses, then sent to the president for a signature. All of that takes time, and if the Republicans squander the next 30 hours, they’ll be doing so at the price of valuable time–time that had been allotted for debate on many, many important FISA amendments.

McConnell says that the Republicans need the 30 hours to study up on recent changes to the Finance Committee’s stimulus package. But those changes amount to two short pages of amendments, approved by Harry Reid, that were requested by Republicans. The goal here is to ensure that not a single vote to improve FISA actually succeeds.

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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 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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