“The End is Near on FISA”

Late last night there was an exchange on the floor of the Senate between Senator Harry Reid and Republican Senator Jon Kyl that revealed the sad state of affairs in the FISA debate. If I ever had any doubt that Senator Reid does not care to get good FISA legislation passed, this exchange confirmed it for me.

Mr. KYL. Mr. President, I said it was my own personal view that we would not be wasting the American people’s time to have a debate on the stimulus package and to have a vote on it on Wednesday. Obviously, I am not speaking for any of my other colleagues, and we would obviously have to do that, but if the leader is concerned about not having people come back for votes tomorrow, which is a perfectly reasonable concern, given the importance of tomorrow on both sides–there are Senators who are out campaigning, and I understand that is a very important proposition–then I think it is appropriate to wait until Wednesday to have a vote on the stimulus package.

Mr. REID. We only have three Senators out campaigning, McCain, Clinton, and Obama, and it was my suggestion that tomorrow, if the Republicans don’t want votes, then shouldn’t we at least have the ability to see if we can complete the offering of amendments on the FISA legislation? We can intersperse that with people who want to talk about the stimulus. They can do that.

I am happy to set a time certain on Wednesday so McCain, Obama, and Clinton know when to come back on Wednesday. I am happy to do that.

I understand my friend is saying that he is speaking for himself, and I appreciate that, but he is the second ranking Republican leader in the Senate. What I would suggest, Mr. President, is that he talk to whomever he needs to speak with–I am sure the Republican leader–to see if what he suggests is doable, and we will get that worked out tonight. And that is tomorrow we can come in, people can talk about the stimulus package all they want, and set a time certain on Wednesday to vote. That would save me having to file cloture on it either tonight or tomorrow night, which will happen. If I file it tomorrow night, the vote will have to be on Thursday. In the meantime, we have to wipe out a lot of time.

I think it is very important we get FISA done. The end is near on FISA. We have worked out an agreement to finish that bill.

So I say to my friend, if I came and offered a consent agreement in keeping with what your suggestion is, do you think you could get it approved tonight?

Mr. KYL. Mr. President, obviously, our colleagues are not here. I would not object to that kind of agreement. I don’t know what others would do.

To be fair, did I represent the distinguished majority leader correctly, that you had assured Senators they would not be voting on the stimulus package tomorrow?

Mr. REID. Yes, I have said, starting at 2 p.m. today–I might even have said it last week–that I have two

Senators, Obama and Clinton, whom I would try to give at least 1 day’s notice when a vote was to occur. That is why it is important to me, and I would think it would be important to Senator McCain also, that we have a time certain on Wednesday to tell them when they have to be here. If we can’t do it by agreement, then the only thing I can do, if the Republicans are going to waste all the time on 30 hours postcloture, I will have to, before midnight tomorrow, file cloture so we can have a Thursday cloture vote.

Mr. KYL. If I can respond, obviously, the majority leader knows I can’t make that agreement here on the floor, but I will pass that on to the minority leader and consult with our colleagues and see what can be agreed to in terms of an agreement.

I think the majority leader is exactly correct. As a matter of courtesy to Members on both sides, it is probably not the best idea to have votes tomorrow. It is an historic day in American history.

Mr. REID. If I can interrupt my friend, on FISA, I think we can easily have votes tomorrow. There would be no problem with that, because those votes, most of them, aren’t going to be that close anyway. I think we need to work through that. I have told all my Senators we would do our best to try to have votes on FISA tomorrow.

Now, maybe this has been in the works for a long time, because one of my Senators told me she was coming over and one of the reporters said: No votes tomorrow, right? She said: What are you talking about? They said: Senator McConnell has told his Senators there will be no votes on Tuesday.

So maybe this has been in the works for some time, that there would be no votes on Tuesday. But we may have a couple anyway, to make sure we have some. I do have that ability, to have votes. It may not be much on substance, but it will be votes, and it will be counted on Senators’ voting records. (S588-589) [Emphasis added]

Let’s be clear on what’s happening in this exchange.

First, Reid tells us that he does not want to hold a vote on the stimulus package without giving Senators Obama and Clinton one days notice to return and vote. The economic stimulus vote is too important to take place without all the presidential candidates there to make their position known. But the same can’t be said about warrantless wiretapping and retroactive immunity. In fact, FISA votes are so unimportant that Reid suggests they continue to take place in absence of presidential candidates (and possibly their surrogates) as a way to kill time while waiting for Super Tuesday to be over and the opportunity for real, important business to arrive.

Second, this is a reflection on what the presidential candidates are making their priorities for the rare trips back to DC. I was not going to place the blame on Senators Clinton and Obama for the Senate “deal” including a schedule that originally put the main debating and voting days on FISA on Monday and Tuesday of this week. It is really unreasonable to expect them to be in attendance in the Senate on the two largest days of the presidential campaign. However, it is also now clear that they are in close communication with the Majority Leader’s office. They have talked with Reid about being in attendance for the stimulus package, while giving the stamp of approval for him to schedule votes on FISA while they are absent from Washington.

Now, again, I don’t have any problem with Clinton and Obama not being in DC today and yesterday. And I do hope they come back to vote on the economic stimulus package. But as I’ve always said, if Obama and Clinton wanted to set the agenda on FISA votes, they probably could. If one of them demanded that Reid not schedule FISA votes without giving them adequate notice to allow their return, I have no doubt based on Reid’s statements about the stimulus package, that Senator Reid would grant them this courtesy. It appears that they have not asked this of Senator Reid.

Third, Reid wants FISA over and done with, even though it is now clear, per Reid’s statement above, that Democrats will not have the votes to pass amendments needed to improve the SSCI bill. His concern is not that the FISA legislation facing the Senate grants retroactive immunity to telecom companies that broke the law and helped the Bush administration spy on American citizens without warrant. His concern is not that the SSCI bill grants massive new powers to the executive branch, while denying needed oversight to the legislative and judicial branches. Harry Reid’s only concern is political – that Republicans will accuse him and other Senate Democrats of failing to give the President a bill to sign, thereby making America less safe and killing adorable kittens, or something equally absurd.

I don’t doubt that the Republicans will attack Dems for obstructionism. Nor do I doubt that they probably want to draw out the process to limit the amount of time available for the House and conference committees to report out a single bill. But Reid’s focus solely on political concerns, now for weeks on end, while ignoring the potential to actually improve the legislation or whip his caucus to ensure that we can reach 51 votes to strip retroactive immunity and stop reverse targeting, bulk collection, and sequestration is beyond infuriating. Instead Reid has conceded that the raft of amendments needed to make the SSCI bill a good bill will not pass. Reid simply wants to get votes on them so he can say, in bad faith, that he and his colleagues did all they could to regulate warrantless wiretapping and act as a check to the executive branch’s power.

Last week there was a great deal of back patting when the Democratic leadership struck a “deal” with the Republican leadership on what FISA amendments will receive votes. We were told the Dems didn’t cave. I had my doubts at the time that that was an accurate representation of the “deal,” but am sad to say that my doubts have been fully confirmed. Reid does not expect the Senate to pass good FISA legislation (though he virtually assured this when he set the SSCI bill as the underlying bill in this debate). He does not expect them to remove retroactive immunity from the SSCI bill, something that he says he wants to do. He has thrown in the towel and all we see happening now is a rear-guard action to cover him from criticism by the base. He is sadly mistaken if he thinks his fig leaf of a “deal” will protect him from any criticism by those of us who actually care about defending the Constitution or standing up for the rule of law over the rule of men.

Mr. Reid says, “the end is near on FISA.”  No doubt he is right. And no doubt with that end, which will be brought about by hasty votes cast by mostly apathetic Senators under the milquetoast leadership of Mr. Reid, we will find ourselves in a country where the rule of law is shuffled aside at the request of the most powerful companies with the assistance of their morally corrupt partners in Congress. We will have granted our government unprecedented authorities to invade our privacy and violate our civil liberties. Our Senate will have passed a bill that is almost certainly unconstitutional. And the work that so many of us have done for so long to assure our rights be protected will have been brushed off by the decisions of people like Harry Reid to not act in good faith to ensure that legislation worthy of our country’s values and dignity is passed by the Senate.

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