Blog - Get Ready for the FISA Debate

(Updated below)

The Senate returns today from their July 4th recess, and they’ll soon be voting on a controversial rewrite of the nation’s foreign surveillance law known as FISA. Civil liberty-minded activists who oppose the bill, a group of mostly Democrats but some Republicans too, have been pushing Senator Barack Obama (D-IL) to support a filibuster of the bill over a part of it that would give legal immunity to the telecom companies that assisted in the Bush Administration’s warrantless (and some say illegal) wiretapping program. But unless Obama changes his position and leads the crusade against the bill, the best chances at altering the immunity provision will come in three separate amendments to be voted on before the final vote on passage.

The first amendment that will be debated and voted on would completely strip the immunity provision from the bill. Chris Dodd (D-CT), Russ Feingold (D-WI) and seven other senators are co-sponsoring this amendment, which, if passed, would certainly cause the President to veto (pdf) the entire bill. It wall almost certainly fail, however. A similar amendment failed by a vote of 31 to 67 the last time the Senate tried to reach a deal on revamping FISA.

The second amendment that will be voted on would give the telecom companies immunity unless a federal district court determines that their assistance “was provided in connection with an intelligence activity that violated the Constitution of the United States.” This amendment is being offered by Arlen Specter (R-PA), who has consistently been the most outspoken Republican senator about the White House’s refusal to have their warrantless wiretapping program reviewed by a court of law. In a press release on the issues Specter said, “The constitutional doctrine of separation of powers has been mangled since 9/11. I believe that, decades from now, historians will look at the time between 9/11 and the present as the greatest expansion of unchecked executive power in the history of the country.” He also said that he will still vote for the bill, immunity and all, if his amendment fails.

The third amendment to be voted on has the best chance of getting passed. The amendment, being offered by Jeff Bingaman (D-NM), Arlen Specter (R-PA) and Bob Casey (D-PA), would delay a decision on retroactive immunity until at least 90 days after Congress receives a report the inspectors general of the intelligence agencies on the warrantless wiretapping program. The Electronic Frontier Foundation, one of the groups leading the opposition to telecom immunity, calls this amendment “a sensible and bi-partisan proposal that could be a game-changer.” They write:

>The current version of the Senate bill calls for an investigation into the President’s warrantless wiretapping program by the Inspectors General of the Department of Justice and other US government intelligence agencies. The IG investigation, while no substitute for an independent court ruling, is likely to uncover some of the details of the program that the White House has been trying to suppress.
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>Unfortunately, the current bill puts the cart before the horse, by granting immunity from the law to phone companies before the investigation has even begun. If the Senate is resolved to pass legislation granting immunity, it it ought to at least know what conduct it’s immunizing — It should give itself an opportunity to revisit the issue after it has the IG Report in hand.

The Senate will immediately take up a housing bill when they reconvene today at 2 PM ET. It’s unclear how much time will be spent on that bill, but the FISA votes won’t happen until work on it has been completed. Last week, Senate Majority Leader Harry Reid (D-NV) said, “it is guaranteed we will complete the work on the housing bill the first week we get back.” I’m guessing they’ll be done wit hit by mid-day Tuesday. Regardless, if you care about the issues of FISA and telecom immunity, you’ve only got about one day to contact your senator or take part in the campaign to make Obama change his position.

UPDATE: Director of National Intelligence Mike McConnell and Attorney General Michael Mukasey told Harry Reid yesterday that if the Bingaman amendment (discussed above) passes, they would advise President Bush to veto the bill. Here’s an excerpt from their letter to Reid (pdf):

>As we have previously noted, any FISA modernization bill must contain effective legal protections for those companies sued because they are believed to have helped the Government prevent terrorist attacks in the aftermath of September 11, 2001. Liability protection is the fair and just result and is necessary to ensure the continued assistance of the private sector. H.R. 6304 contains such protection, but the amendment addressed in this letter would unnecessarily delay implementation of the protections with the purpose of deferring any decision on this issue for more than a year. This amendment would reportedly foreclose an electronic communication service provider from receiving retroactive liability protection until 90 days after the Inspectors General of various departments, as required by section 301 of H.R. 6304, complete a comprehensive review of, and submit a final report on, communications intelligence activities authorized by the President between September 11, 2001, and January 17, 2007. The final report is not due for a year after the enactment of the bill. Any amendment that would delay implementation of [immunity] in this manner is unacceptable. Providing prompt liability protection is critical to the national security. Accordingly, we, as well as the President’s other advisors, will recommend that the President veto any bill that includes such an amendment.