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Senate Finalizes Their Surveillance Bill, Immunity Intact

February 12, 2008 - by Donny Shaw

It was a rough morning in the Senate for those who oppose giving legal immunity to the telecom companies that helped President Bush with his warrantless wiretapping program. For months, the question of granting immunity to the companies, who are currently facing over 40 lawsuits, had been a sticking point in the Senate’s work on updating the foreign surveillance law, or FISA. Many Democrats vehemently opposed granting immunity, but President Bush repeatedly stated that he would not sign a FISA bill without it.

But this morning, with the expiration of part of FISA looming on Friday, the Senate once and for all approved the immunity and completed their work on the bill, jolting it forward towards finally becoming law.

This morning’s main immunity vote came on an amendment from Chris Dodd (D-CT) and Russ Feingold (D-WI) to strip the immunity provision from the bill. It was rejected by a vote of 31 (in favor) to 67 (opposed). Just to be clear, a vote opposed to the amendment is tantamount to a vote in favor of immunity. Eighteen Democrats (and one Independent-Democrat) voted for the immunity. Booman lists them here.

Several other amendments to the bill were also voted on this morning. One, from Arlen Specter (R-PA), to substitute the United States for the telecom companies in the pending lawsuits, was rejected by a vote of 68-30. Another, from Dianne Feinstein (D-CA), which would have added a statement to the bill that FISA is the exclusive means by which electronic surveillance and interception of domestic wire, oral and electronic communications may be conducted, was also rejected by a vote of 41-57. Daily Kos diarist Kagro X writes that by rejecting that amendment the Senate is saying that “they’re passing a law, but if a president decides later on that he thinks there’s really some other controlling authority besides the law, that’s OK.”

Russ Feingold’s reverse targeting amendment was also rejected. The amendment would have required the FISA court to approve any surveillance of communications between a U.S. person and a foreign person if a "significant purpose of the surveillance was to listen in on the U.S. person.

The Senate, by voice vote, did adopt one amendment to the bill. That amendment, offered by Sheldon Whitehouse (D-RI), strengthens the FISA court’s ability to monitor what the government does with information that is incidentally obtained on a U.S. person during surveillance of a foreign person. Ed Morrissey of the Captain’s Quarters blog sees this as a “good and productive compromise.” “We need to give the maximum amount of flexibility and responsiveness to our front-line efforts, but we also need to ensure that they follow the rules and do not abuse their power,” he wrote.

For more information on other amendments to the FISA bill that were rejected today in the Senate, check out the excellent, rolling coverage at the Senatus blog.

The Senate’s FISA bill now has to be reconciled with the House’s FISA bill in a joint conference committee. As CongressDaily ($) explains, it may be tough to get that done by Friday (when part of the current FISA law expires) because there is still not a agreement among key House negotiators that telecom immunity should be granted.

>The House bill, pushed through by Democrats in the fall, would require the administration to get warrants from the secret FISA court to conduct surveillance against groups of suspected terrorists. And, notably, the House bill would not give the companies retroactive legal immunity. House Democratic leaders and members of the House Intelligence and Judiciary committees have been reviewing legal documents underpinning the administration’s warrantless surveillance program to determine if the companies should be given immunity.
>Rep. Rush Holt, D-N.J., a key member of the Intelligence Committee, said Monday he is not ready to give the companies immunity, despite having reviewed documents. He said he had not read all the documents available, and is not sure if the administration has provided every document that is needed. “What I can say from the papers I’ve seen is the surveillance program should not have gone forward as it did,” he said. “The legal justifications for it were shallow at best and maybe flat out wrong.” Hoyer suggested last week that the issue of immunity could be dealt with in separate, stand-alone legislation. When asked if the idea of doing stand-alone legislation was actively being considered, an aide to Hoyer said Democratic leaders were waiting to see the final Senate bill before deciding how to proceed.

Pictured above is Chris Dodd, the leading senator in the push against granting telecom immunity.

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