Sunday, February 17, 2008

Senate takes a quasi-recess for President's Day: Bradbury Nomination and FISA legislation will wait


Senators will not be on the floor this week. The Senate is taking the week off for a President's Day recess. It won't be a "recess" in the technical sense, however, because Senate Democrats will continue their efforts to block a Bush recess appointment by holding pro forma sessions throughout the period of recess.

The Senate met for a pro forma session on Friday and will do so again on Tuesday the 19th.

The Bradbury Nomination

[16:08]
Senate Democrats are ardent in their opposition to Steven Bradbury, President Bush's nominee for head of the Office of Legal Counsel (OLC) in the Justice Department. Dick Durbin (IL) among others has been outspoken in opposing Bradbury, who refused to repudiate harsh interrogation techniques including waterboarding. Durbin has suggested that Bradbury, as an employee at the OLC, has signed off on legal opinions authorizing harsh interrogation techniques. The opinions that OLC issues are binding on the White House.

Bradbury himself has been acting head of the OLC since 2005, when he replaced the retiring head of the Office. It was at this same time that Bush sent his nomination to the Senate.

I have not written much about Mr. Bradbury on this site, but Durbin has been visible from time-to-time on the floor chronicling the fight over Bradbury's nomination. Durbin said that numerous other nominations were being held up because the President has issued a "Bradbury or nobody" ultimatum.

The Latest on FISA

[16:09]
The fight over an update of FISA provisions governing electronic surveillance and wiretapping will continue well into this next week. I will attempt a brief recap.

In August of 2007, Congress passed new FISA provisions governing how the U.S. gov't can go about collecting intelligence by means of wiretap and electronic surveillance. This legislation became necessary in light of the Bush administration's insitution of what appears to have been an illegal "terrorist surveillance program" in the wake of the 9/11 attacks. The 2007 Protect America Act was merely an addition to existing FISA law, the bulk of which was introduced as law in 1978. The Protect America Act carried a six-month sunset provision, meaning it was due to expire on Jan. 31, 2008.

The Protect America Act of 2007 is flawed. No one seems to disagree with that. However, Congress as a whole has not been able to pass a replacement. The House passed its Restore Act late last year. The Senate attempted to pass a replacement last December but it was blocked by Chris Dodd (CT) among others, who objected to a provision in the Senate version of the bill providing retroactive immunity for telecommunications companies complicit in the government's apparently illegal warrantless spying program spanning 2001-2006. The House's version of the bill does not include such immunity.

Flash forward to this January. The Senate was still moving slow on its version of the bill. So Congress passed a 15-day extension of the Protect America Act of 2007, setting a new expiration date of Feb. 16th, 2008.

Jay Rockefeller (WV), chairman of the Senate intelligence committee, along with vice-chair Kit Bond (MO) rushed to beat this Feb. 16th deadline. They led a defeat of a rival Judiciary Committee bill that would have stripped immunity from the new FISA legislation. They further beat back several civil libertarian-minded amendments offered by Dodd and Russ Feingold (WI) that would have placed further checks and balances — or if you like, "burdens" — on the collection of intelligence under the new legislation. A Dodd amendment attempting once again to strip immunity from the Senate package couldn't get 50 votes.

The Senate passed its bill with several days to spare before the Feb. 16 deadline. President Bush wanted the House to hold a vote on the Senate-passed bill. Senate majority leader Harry Reid (NV) wanted to pass another extension of Protect America, either 15- or 30-days' worth, to allow Senate and House leaders to conference on the legislation or work out some other agreement. The House held a vote on a 21-day extension of the current law, but it was defeated by Republicans and Blue Dog Democrats.

House leadership, namely Nancy Pelosi and Steny Hoyer, held strong and refused to hold a direct vote on the Senate-passed bill. President Bush threatened to delay his trip to Africa. The intelligence community warned about a FISA gap. Hoyer said, "Why doesn't the Senate vote on our bill?" On Thursday the 14th, the House recessed for President's Day/Week.

Hoyer and others spoke on Friday the 15th to assure the public that the intelligence community wouldn't really be all that affected by the expiration on Saturday of Protect America. It seems that any targets already being bugged by the gov't can be surveilled for another year under the Protect America rules. The gov't can still use the rest of FISA — which hasn't expired — to go to court and get a warrant for new surveillance. Director of National Intelligence Mike McConnell agreed that this was true but characterized the process of getting a warrant as "burdensome." The Protect America Act allows the gov't to conduct certain types of surveillance without getting a warrant.

More interesting perhaps was McConnell's statement on Friday that the most important piece of the new FISA legislation — i.e. the Senate version — was indeed the retroactive immunity for telecoms. He said that the private companies play a pivotal role in the surveillance and that they need assurances that they aren't going to be sued. Bush has also said this.

Opponents of immunity warn that insulating the telecoms from the 40 or so lawsuits stemming from the 2001-06 warrantless surveillance will prevent the public from knowing the true extent of the program. Dodd has argued that the request for immunity by the White House is about "secrecy and power."

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