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A FISA Agreement

February 1, 2008 - by Donny Shaw

Democrat and Republicans leaders in the Senate — that’s them pictured on the right — reached an agreement last night on how to proceed with amendments to the FISA reform bill, which contains the controversial telecom immunity provision. The debate will start (again) on Monday. The basic agreement is that some of the pending amendments will be decided by a simple majority vote, while others — the one’s Republicans feel would significantly change the bill — will require a 60-vote majority to pass.

McJoan at DailyKos has a rundown of which amendments will need 50 votes, and which ones will need 60:

>According to leadership sources, these key Democratic amendments will get a simple majority vote:

  • Striking Immunity (Feingold/Dodd): Strips the provision providing for telco amnesty from the current bill.
  • Sequestration (Feingold): Prohibits the use of illegally obtained information.
  • Bulk collection (Feingold): Requires the government to certify to the FISA Court that it is collecting communications of >targets for whom there is a foreign intelligence interest.
  • Reverse targeting (Feingold): Prohibits warrantless reverse targeting by requiring a FISA Court order for surveillance of a >foreign person where the “significant purpose” of the collection is to target a U.S. person located in the United States.
  • Substitution (Whitehouse-Specter): Substitutes the government for telcos being sued for their participation in the >warrantless wiretapping program, but only if the company is first determined by the FISA Court to have cooperated with the >Bush Administration reasonably and in good faith.
    >The amendments that would require a 60 vote majority are:
  • Minimization (Whitehouse-Rockefeller-Leahy-Schumer): Minimization is the process of weeding out data obtained about >U.S. persons and destroying it. This amendment would grant the Foreign Intelligence Surveillance Court the discretionary >authority to not only approve minimization rules but to review their implementation.
  • Sunset Provision (Cardin): Shortens the sunset of the FISA Amendments bill from six years to four years.

The telecom immunity provision has been the major sticking point stalling negotiations of this bill over the past month or so. It is interesting that the amendments pertaining to that provision are included in the 50-votes-needed-for-passage category. McJoan sees this as a partial victory for Democrats; an award for not caving on the issue. Glenn Greenwald, on the other hand, thinks that this agreement has been reached because Republicans know that Democrats can’t organize themselves to all vote together on an issue, so they will still be able to block the amendments in the simple-majority category from passing:

>It seems rather clear what happened here. There are certain amendments that are not going to get even 50 votes — including the Dodd/Feingold amendment to strip telecom immunity out of the bill — and, for that reason, Republicans were more than willing to agree to a 50-vote threshold, since they know those amendments won’t pass even in a simple up-or-down vote.
>But then, there are other amendments which might be able to get 50 votes, but cannot get 60 votes — such as Feinstein’s amendment to transfer the telecom cases to the FISA court and her other amendment providing that FISA is the “exclusive means” for eavesdropping — and, thus, those are the amendments for which the GOP insisted upon a 60-vote requirement.
>The whole agreement seems designed to ensure that the GOP gets everything they want — that they are able to defeat all of the pending amendments which Dick Cheney dislikes, and to do so without having to engage in a real filibuster.

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