January 24, 2008: Judiciary committee's improvements to FISA bill fail, meaning a filibuster is ahead

[20:08]
The Senate has adjourned. A very frustrated Harry Reid said that the Senate would open business again at 9:30 tomorrow morning but "due to the parliamentary situation created by the Republicans" no roll-call votes will occur.

Small talk turns to stimulus

[19:24]
After another day of partisan wrangling that brought a halt to FISA reform, senators have turned their focus to the impending stimulus package. Maria Cantwell (WA) was on the floor earlier urging that senators include funding for alternative energy in the form of wind power. Now Tom Harkin (IA) is asking what happened to the food stamp funding that was supposed to be in the bill? How much is it going to help if the taxpayer goes out and spends his rebate on a flat screen TV made in China. Maybe a little, he concedes, but not much. What about the low-income heating assistance that was supposed to be part of the package?

From what I understand, taxpayers can expect a tax rebate check in June. June? What happened to timely, targeted, and temporary? June!?

Will the stimulus package, like many things, die in the main aisle of the Senate?

FISA cloture vote scheduled

Cloture on the intelligence committee version of the FISA bill is scheduled for 16:30 on Monday. Cloture is unlikely to be successful. Democrats, unable to offer amendments to the bill, will vote no.

Republican blockade

[17:23]
Republicans are now refusing to let a series of amendments to the FISA bill come to an up or down vote. Many of these amendments contain provisions identical to those in the judiciary substitute version of the bill that was cut down this morning.

Among those amendments that Republicans are refusing to allow come to a vote:

- Sunsetting the new FISA bill in four years as opposed to six
- Making FISA the sole means by which the gov't can conduct wireless surveillance
- The Feingold amendment calling for Congressional access to FISA court pleadings
- A provision mandating that if the conversation of an innocent American is stumbled upon in the process of warrantless surveillance, that the eavesdropping cease (duh!)
- Retroactive immunity for complicit telecom companies

So what we've got is more of the same stalling from Republicans. Why not just let these matters come up for an up or down vote? asks Reid, who is now asking that Republicans at least allow Reid to propose an extension of the current law.

Mitch McConnell (KY) is poised to present a cloture petition on the bill. That cloture vote could occur on Monday. Reid said he'd vote against cloture because he believes these matters need to be debated and voted on.

A Feingold amendment calling for more oversight privileges

[15:07]
Russ Feingold (WI) has introduced an amendment requiring the executive branch to report to Congress any court pleadings it submits to the FISA court which ask for a novel interpretation of FISA law. Presumably, this is in response to the Bush administration's belief that it could wiretap without warrants in the wake of 9/11. For example, there was Alberto Gonzales's argument as White House counsel that the Congressional authorization to use force in the wake of 9/11 gave the President the power to conduct warrantless surveillance.

Bond has a problem with the amendment. He says that the pleadings have always been kept confidential because they contain sensitive information such as sources, methods, and assets/informers of the intelligence committee. He says that if the pleadings are shared with Congress then "the whole framework of the intelligence committee could be brought down." This sounds a bit extreme. Why would members of Congress share sensitive information with the public or with our enemies?

Bond offers a second-degree amendment to the Feingold amendment stripping it of its requirement that Congress see pleadings.

Feingold says, my amendment says that certain sensitive information can be redacted from the pleadings that Congress sees. Feingold says, This is a classic example of hiding behind a tragedy. Bond's argument has no merit, he says.

The representatives of the people need to know, in a classified setting, what this government is doing, says Feingold. Listen close, he says, because this argument is going to be made "on every aspect of this bill."

Americans Abroad

[14:59]
The Senate is now working on amendments to FISA. Current business is a Sheldon Whitehouse (RI) amendment working a provision into FISA to ensure that Americans abroad won't have their conversations listened to without a court order from the FISA court. Probable cause would be required for a warrant. For example, probable cause would be that the U.S. person is an agent of a foreign power or has information relating to terrorism.

Bond urges his colleagues to support it.

Judiciary's version of bill fails

[14:28]
Senate votes down judiciary substitute 60-34, thereby voting for retroactive immunity for telecoms. Votes on more amendments ahead. Reid now saying that amendments will go title 1 first, title 2 second. Title 2 is the retroactive immunity provision.

Reid did mention something about an amendment in the works that will be offered by Rockefeller and Dodd (CT). Dodd promised a filibuster if retroactive immunity remained in the bill. Is a compromise afoot?

[14:09]
Here are the votes on a motion to kill the FISA substitute, which unlike the intelligence committee's version of the bill does not provide immunity for telecom companies that allowed the gov't to eavesdrop on communications without warrants:

Republicans so far are voting yes, Democrats no —

Dems aye: Bayh (IN), Mikulski (MD), Pryor (AR), Inouye (HI), Lieberman (CT), Salazar (CO), McCaskill (MO), Nelson (FL), Carper (DE), Johnson (SD), Nelson (NE), Landrieu (LA)
Repubs no:

The substitute is going to be killed — now we will see what a filibuster really looks like.

60 yeas, to 34 nays. Motion to table is agreed to.

Judiciary's version of the bill

[14:02]
There is now a roll call vote on the judiciary's substitute bill, which would rework the intelligence committee bill in 12 ways. The vote is on a motion to table the substitute, 50 votes needed to kill the judiciary substitute.

Here are some of the ways that the judiciary committee's substitute amendment would change the FISA bill now on the floor.

One, it would introduce an exclusivity provision, explicitly stating that adhering to FISA is the only way to conduct foreign intelligence surveillance, pre-empting any Bush-type claim that the executive is allowed to work outside the law.

Second, it would not allow retroactive immunity for telecom companies being sued for their part in helping the gov't listen in on private communication without a court order (as FISA requires).

Three, it sunsets the reauthorization of FISA in four years instead of six.

Four, it makes clear that the Senate's resolution to authorize force in the wake of 9/11 did not give the president the authority to eavesdrop on Americans without a court order.

Five, it gives the FISA court oversight authority over the way the executive branch conducts foreign surveillance.

Judiciary Commmittee versus Intelligence Committee

[13:59]
There is something of a turf war underway concerning the revision of FISA in the senate. Two committees have jurisdiction over FISA — intelligence and judiciary. Harry Reid brought the intelligence bill to the floor, meaning judiciary chairman Patrick Leahy (VT) had to offer the judiciary's bill as an amendment. Intelligence committee chairman Jay Rockefeller (WV) has voiced his opposition to the judiciary bill. In response, Leahy has vowed to bring up the judiciary bill piece by piece, which would take a long time to work through on the floor via roll call votes.

And, said Leahy, all of the amendments would be germane and therefore could be brought up after cloture.

[10:11]
Now Kit Bond (MO), ranking member of the intelligence committee.

[10:08]
Jay Rockefeller (WV), chairman of the intelligence committee, is now speaking about the two FISA bills before the Senate. One contains retroactive immunity for telecoms (the Leahy bill) and one does not (the bill that came out of the intel committee). Both bills contain sunset provisions, either four or six years, respectively.

Roll call votes are expected to occur throughout the day in relation to FISA amendments.