Monday, February 11, 2008: A full day and night of FISA debate, but no votes

Senate adjourns; FISA votes tomorrow at 10:00

[22:09]
Dodd sounded doubtful that any of the retroactive immunity amendments would pass. He thus urged senators to join him in opposing cloture on the bill. The retroactive immunity amendments need 51 votes to pass. Opposing cloture takes only 41 senators. We will see!

Dodd speaks for 2 1/2 hours on retroactive immunity

[20:48]
Chris Dodd (CT) has now been speaking for awhile about the retroactive immunity provision that is, for the time being, a part of the FISA legislation in front of Senate. Recall that the House did not include such a provision in its version of the new FISA provisions.

Dodd makes a principled argument. He points to a pattern of abuse by the Bush Administration. He urges his colleagues to stand up to an overreach by the Executive. Like Specter, Dodd is willing to say, "Hey, maybe this program was legal. I don't think it was but let's say it was. But we need to let a court say so."

He also believes that the full extent of the program has not come to light. He cites one whistleblower who indicated that for a period of years after 9/11 every single domestic communication — text, email, fax, browsing records — was seized, copied, and stored by the government (NSA) and the telecom companies. Note. This seizure grabbed any and all communications by U.S. citizens, even if these communications had no foreign component. If this were proved, I believe the public would be aghast. The whistleblower who helped bring the program to light referred to the surveillance as "vacuum cleaner surveillance."

Dodd has been speaking for over an hour. Perhaps this is a preview of his filibuster presentation. He says that if his amendment stripping immunity from the bill does not pass, that senators should vote against cloture so that senators can return to the judiciary committee's version of the bill. A cloture vote would apparently follow the eight amendment votes.

He also points out that FISA was passed in 1978, on the heels of the Church Commission's report. That report detailed spying by the U.S. Army, FBI, and CIA on American citizens, including the compilation of dossiers of innocent Americans. Dodd is saying, "Look, FISA was erected for a reason. The Congress that passed it saw the government do horrible things. Will we now undo the work of our predecessors? Do we think our time is so much different, that we will breach the privacy rights of our citizens in the name of governmental power and secrecy?"

UPDATE: It is now 21:49 and Dodd is still going. I can only figure that he is required to burn a certain amount of time before his amendment is ripe for a vote. I believe he has been talking for over two hours straight.

UPDATE: At 22:04, Dodd asks for 40 other senators to join him in defeating cloture on the bill should all of the amendments trying to bring down retroactive immunity fail. He has been speaking for two hours and 25 minutes.

Specter speaks about his "substitute the defendant" amendment

[19:37
Under the Specter/Whitehouse amendment regarding retroactive immunity for telecoms, the government would take the place of the telecom companies in the forty or so pending lawsuits. Specter says that the government could only avail itself of any defenses that are currently available to the telecoms. Thus, the government could not escape liability by claiming governmental immunity. It could, however, claim that the doctrine of "state's secrets" prevent certain information from coming to light in the trial; that defense is also available to the telecoms.

Specter says, "Hey, the program might have been legal." (He doubts it.) "The program might have been legal, but that's up for the courts to decide." He notes that President Bush has claimed that he as President was authorized to ignore the laws of Congress because the President's own Article II constitutional powers supersede any statute.

Well, I just looked at Article II and I don't know what clause or paragraph Bush is relying on with this Article II argument. It's bupkus. The strongest clause is "The President shall be the Commander in Chief of the Army...." Where he gets any notion that he, as commander in chief, can suddenly disregard the laws that the people have passed I don't know.

Eight FISA votes tomorrow, straight away

[18:59]
There won't be any morning business tomorrow. Eight FISA votes will begin at 10:00. Three of those votes will be subject to 60-vote thresholds: a Whitehouse amendment on minimization procedures, a Feinstein amendment on subjecting telecoms to a question of "good faith" compliance regarding their participation in the warrantless surveillance, and amendment No. 3919, another Feinstein amendment providing for the review of FISA certifications by the FISA court.

More Quorum Call

[18:32]
Lots of quorum call this evening. The big votes come tomorrow. Today had some decent FISA debate but really it was sort of a non-day on the floor.

Senate is in a quorum call

[17:27]
Earlier Chris Dodd (CT) seemed to endorse the Specter/Whitehouse amendment substituting the gov't for the telecom companies in the lawsuits stemming from the government's warrantless wiretapping program. Presumably then, if Dodd is still willing to stage a filibuster, he would hold off as long as his amendment stripping immunity from the bill altogether OR the Specter/Whitehouse amendment passed.

Feinstein discusses her "test of good faith" amendment

[15:32]
As an alternative to stripping immunity from the bill; and as an alternative to substituting the U.S. as defendant in telecom lawsuits, Feinstein offers an amendment such that only telecom companies which complied with the government's illegal surveillance in "bad faith" would be subject to lawsuits. These cases would be heard by the FISA courts themselves.

She says that FISA does already contain a provision speaking to the situation in which the gov't asks a private individual or company to do something that might be illegal. She argues that if a telecom reasonably believed that it was not breaking the law, it should not be subjected to litigation as a result of helping the gov't spy on Americans. The company would have to prove "an objectively reasonable good faith belief" that it was not breaking the law. The determination would be up to the FISA courts, which by the way, are composed of 40 federal judges appointed by the chief justice of the Supreme Court.

Hatch follows Feinstein to say that this amendment has problems. First, this standard of "good faith belief" is not defined in the amendment. So what does it mean? he asks. Who decides what it means? Second, he says that the FISA courts are not trial courts. They've never held a trial, he says. The FISA courts are not equipped to handle these cases. (Of course, all of the FISA judges are federal judges, well-versed with holding a trial-like case.)

Sheldon Whitehouse (RI) later [15:56] speaks in support of the amendment, though he notes that the "good faith" standard is the lowest possible standard. "We are not even requiring," he says, "that the companies have complied with the law." Only, he says, that they thought they were.

This amendment needs to get 60 votes tomorrow to pass. Feinstein seemed to indicate that the other two immunity amendments need only a simple majority (51) to pass. That is surprising because so far all of the FISA amendments have needed to get 60 votes to survive. Maybe there aren't 51 votes for stripping immunity from the bill.

Feinstein discusses her "exclusivity" amendment

[15:26]
First, Dianne Feinstein (CA) offers an amendment making crystal clear that from here on out FISA, i.e. the Foreign Intelligence Surveillance Act of 1978, is the sole means by which the gov't can conduct electronic surveillance. The import of this amendment is its preemptive ability to prevent any President from claiming that he is, in Feinstein's words, "above the law."

Feinstein pointed to the important steel seizure case in which Justice Jackson put forth the "three zones of presidential power" doctrine which is generally accepted as correct still today, 50 years after President Truman tried to crush a steel strike by claiming that he had the inherent power as commander in chief to crush the strike given that the country was in war (in Korea) and that the steel mills needed to make weapons etc.

Jackson surmised that presidential power was at its lowest when the President acted in contravention to the laws passed by Congress. In this case, Congress (i.e. the people) passed FISA in 1978 in response to the horrendous revelations of gov't surveillance unearthed in the Church Report. Feinstein is arguing that when Congress passed FISA it prevented the President from claiming greater power to "self-legislate" in the same area. Yet, President Bush has argued that he has Article II (i.e. vague constitutional powers) that allowed him to go around FISA and listen to Americans without a warrant. This Feinstein amendment makes explicit that FISA is the only way to do electronic surveillance in the U.S.

Feinstein named a bipartisan group of co-sponsors on this bill including Specter, Hagel, and Snowe.

Kyl gives three reasons why immunity should be included in FISA

[15:19]
Jon Kyl (AZ) said that the provision of the pending FISA legislation granting retroactive immunity to telecom companies helping the gov't with its warrantless wiretapping should remain in the bill. Specifically, Kyl was arguing against a Specter /Whitehouse amendment that would substitute the gov't for the telecoms in the lawsuits stemming from the program.

First, Kyl said that if the lawsuits proceed, even with the gov't as defendant, the names of the telecoms that cooperated will become known. This seems sort of weak because it is already known publicly that AT&T cooperated while Qwest Communications refused to cooperate absent a court order.

Second, said Kyl, the employees of these companies will be subject to the "rigors of litigation," for instance depositions and interrogatories. He did not say why this would be detrimental but presumably he meant that the employees would spend all of their time on lawsuit-related activities rather than their regular work. To that I say. Well, how much time, money, and hardware did AT&T spend on the warrantless surveillance?

Third, Kyl said that the gov't didn't want to disclose its "sources and methods." That if the lawsuits go ahead, terrorists will learn what not to do in the future. Maybe this point has merit but it does seem like the terrorists would already be pretty cautious and already know that the U.S. is tried to intercept their communications.

Hatch, Feinstein add to the Lantos Tribute

[14:27]
Orrin Hatch (UT) is paying tribute to his friend, California Congressman Tom Lantos, who died today. Lantos had recently chaired the House's Foreign Relations committee.

Dianne Feinstein (CA) now joins in the tribute. She says Lantos represented the district directly south of San Francisco.

The Senate is getting underway

[14:01]
Harry Reid (NV) says that votes on FISA amendments will begin tomorrow at 10:00. All of the debate on the amendments will occur today. Reid is now remembering Congressman Tom Lantos, of California, who died today from cancer of the esophagus. Lantos was a Holocaust survivor, having twice escaped from concentration camps in Hungary.

Precap:

At 14:00, the Senate will convene and resume consideration of S.2248, the FISA Amendments Act. Recall that the pending FISA legislation revises certain aspects of the law, most importantly governing the way our government conducts electronic surveillance and wiretapping. The revisions replace the Protect America Act of 2007, which the Congress made law in August 2007. At the time, legislators put a 6-month sunset on the Protect America Act because they weren't sure they had gotten it right. With progress slow on revision, Congress added another 15 days to the Protect America Act in late January. It is now set to expire on Feb. 16, i.e. Friday.

Senators will speak about various amendments to the Intelligence Committee's draft of new FISA legislation. Most importantly, senators have yet to vote on a Feingold/Dodd amendment that would remove from the bill a provision offering retroactive immunity to telecom companies that aided that gov't in illegal, warrantless snooping from 2001 to 2006. A vote on this subject could come tomorrow. Alternatively, a Specter/Whitehouse amendment would retain the immunity provision but it would also substitute the U.S. gov't as defendant in the 40 or so lawsuits pending against telecom companies. In this manner, courts would still be allowed to examine the post-9/11 program to determine if it truly was illegal and why. The full extent of the program would also come to light.