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Time to Look to Other Options for FISA Reform?

January 28, 2008 - by Donny Shaw

This afternoon’s FISA votes in the Senate went down just about as expected. The Republican-led motion to end debate on (and proceed to passage of) the FISA reform bill with the telecom immunity provision failed, 48 in favor and 45 against. Sixty votes were needed for it to pass. After it failed, Senate Majority Leader Harry Reid (D-NV) immediately held another vote on a bill to extend the Protect America Act (PAA) for 30 days, but that failed too, also by a vote of 48 in favor and 45 against.

And so the Senate is back to where they left off last Thursday - in a race to enact a FISA reform bill before the PAA expires on February 2nd, but without an agreement as to whether amendments need 50 or 60 votes to pass. It’s still unclear how that issue will be resolved when the Senate takes up the debate again tomorrow at 2PM. The pending amendments to be considered (if some kind of agreement is reached as to how to consider them) include the Dodd/Feingold amendment to strip the telecom immunity provision from the bill, the “>Feinstein amendment to pass jurisdiction of the pending telecom lawsuits involving the administration’ s illegal wiretapping program over to the secret FISA court, ”">Specter’s amendment to replace the telecom companies with the government in the lawsuits and the Feinstein amendment to clarify that FISA is the exclusive means for electronic surveillance.

Also tomorrow, the House of Representatives is expected to vote on and pass their own 30-day extension of the PAA, which will send the proposal back into the Senate for another vote later in the week. If the Senate’s amendments process can’t be worked out again, the vote on the House’s extension could give Republican Senators another chance to keep the PAA aspect of FISA in effect.

The PAA, which was approved in August, sought to fix a flaw in FISA that the administration said was blocking their ability to legally and quickly intercept some foreign communications that are routed through the U.S. The PAA also gave the Director of National Intelligence and the Attorney General broad authority to quickly execute wiretaps without warrants as long as it is to obtain intelligence concerning persons “reasonably believed to be outside the United States.”

We’ll have to wait and see what happens with the House’s PAA-extension bill and with the FISA debate in the Senate tomorrow, but the most likely scenario is that the Senate remains in a standstill and allows the PAA to expire. At that point, will Reid rethink his decision from December to bring the Intelligence Committee’s version of the FISA bill to the floor? As he explained at the time, there are other proposals pending — perhaps he’ll want to re-explore those as possible starting points for a new debate:

>I have determined that in this situation, it would be wrong of me to simply choose one committee’s bill over the other. I personally favor many of the additional protections included in the Judiciary Committee bill, and I oppose the concept of retroactive immunity in the Intelligence bill. But I cannot ignore the fact that the Intelligence bill was reported favorably by a vote of 13-2, with most Democrats on the committee supporting that approach. I explored the possibility of putting before the Senate a bill that included elements of both two committee bills. Earlier this week, I used Senate Rule 14 to place two bills on the calendar.
>The first — S.2440 — consists of Titles I and III of the Intelligence bill, but did not include Title II on retroactive immunity. The second bill — S.2441 — consists of Title I of the Intelligence bill and Titles II and III of the Judiciary bill. But after consulting further with Chairman Rockefeller and Chairman Leahy, a consensus emerged among the three of us that the best way to proceed would be by regular order. Both Chairmen agreed with this approach.
>Under regular order, and the rules of the Senate governing sequential referral, I will move to proceed to S. 2248 — the bill reported by each committee. When that motion to proceed is adopted, the work of both committees will be before the Senate. Because of the order in which they considered the bill, the Intelligence Committee version will be the base text, and the Judiciary Committee version will be automatically pending as a substitute amendment.

Just to clarify, the Intelligence Committee and Judiciary Committee’s versions of the FISA reform bill are both numbered S.2448. The two committees share jurisdiction over FISA policy and both held their own mark up sessions for the bill. The intelligence Committee marked up (approved) the bill first and included the retroactive immunity provision in their version. When the Judiciary Committee marked up the bill after them, they struck out the immunity provision (Title II) and made several procedural and oversight changes elsewhere in the bill.

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