Category: Rule of Law

The Republicans’ SSCI Myopia

Watching the Republicans debate FISA amendments over the last number of days, one theme keeps coming up in their speeches. The Republicans are acting like only the Intelligence Committee has jurisdiction on FISA. They keep referring to the fact that the Rockefeller bill is bipartisan and they want retroactive immunity, etc.

What they refuse to recognize is that the Senate Judiciary Committee also has jurisdiction on this matter and what the SJC said – no RI, no bulk collection, minimization, etc – is equally applicable for consideration.

I wonder what would give them the idea that the SSCI interpretations of FISA reform legislation has complete and total precedence over the SJC work on the legislation?

Could it possibly be that Harry Reid’s decision to make the SSCI bill the underlying bill contributed to this position? Perish the thought…

Jay Rockefeller: More Illegal Spying on Americans, Please

I actually missed this speech yesterday, but fortunately Marcy Wheeler didn’t.

Jello Jay’s speech is eye-popping for several reasons. It reveals he simply does not care if the government abuses this collection program. For him, it’s more important to make massive collection easy than to include safeguards against abuse. His speech amounts to legal sanction for the government to abuse this program….

Also, Jello Jay’s speech reveals just how false are all the claims that this program does not involving spying on Americans. The reason he falsely asserts that Feingold’s program would cause the government to lose all of the information collected in a given program is because the US person data collected as part of these programs cannot be segregated out from the foreign data.

This program is, Jello Jay reveals, designed to spy on Americans.

Ryan Singel at Threat Level has much more on Rockefeller’s efforts to expand the government’s ability to spy on American citizens. Singel writes:

The changes aren’t about making it easier for the National Security Agency to listen in on a particular terrorism suspect’s phone calls. The changes are about letting the nation’s spooks secretly and unilaterally install filters inside America’s phone and internet infrastructure.

Rockefeller essentially wants to make everything the Bush administration has done outside the law legal. Moreover, Rockefeller’s argument for bulk collections of Americans’ communications runs in direct contravention to the 4th Amendment and likely makes the SSCI bill unconstitutional.

“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.

FISA Programming Notes

The Senate has, again, resumed debate of FISA in the Senate, though today’s schedule is far less clear than we thought it would be.

Though there was a good deal of debate on FISA amendments yesterday, no votes were held. The Senate spent some time on the economic stimulus package in an effort to get that quickly to the desk of the President. Now the Republicans are obstructing the Democrats from moving back to the discussion of FISA amendments, instead insisting on staying on the stimulus package for the duration of the 30 hour period before cloture ripens.

The Democrats will try to get both debate and votes in today, though it’s unlikely that all FISA amendments will happen today in the best of circumstances. Republicans just don’t want to get this done. Even if we are able to move back to FISA, it looks unlikely that any Title II amendment – pertaining to retroactive immunity – will be voted on today.

The good news is that this delay gives us more time to put pressure on the Senate to vote in favor of the Dodd-Feingold Amendment to strip retroactive immunity from the Intel bill. Contact your Senators now through CREDO Action’s contact tool.

Stay tuned for updates.

Cross posted at the CREDO Blog.

Football vs FISA

Sen. Chuck Schumer just spent six out of his ten allocated minutes praising the NY Giants for their Super Bowl victory and introducing a resolution doing just that. He did this instead of talking about oversight of how the government can and cannot monitor Americans’ communications.

I say this as a life-long and still giddy Giants fan: Mr. Schumer, please focus on what’s important.

Russ Feingold in Newsweek

Russ Feingold is interviewed in Newsweek and does a great job beating back Republican scare tactics and spurious arguments for surrendering our liberties in exchange for security.

How has the debate overall come to be framed so incorrectly, as you suggest?
One reason is that there’s been an inadequate response to the Bush-Cheney scare tactics. They’ve been successful every time—in the Iraq War, with the Patriot Act—[in saying] “If we’re not given these powers immediately, we will be attacked.” These are bogus claims. The problem is with many people, including Democrats, who fail to stand up and say, “We feel just as strongly as you do. And we don’t want you invading our privacy without any court review.”

Supporters of the PAA say that if these calls and e-mails were subject to the regular FISA court, it would take hundreds of lawyer and analyst hours to prepare them for the appropriate review.
Listen, a criticism like that just shows no understanding of what’s going on here. Every time a foreign conversation runs through a transmitter in L.A., there was an archaic technicality in the law that would require individualized warrants [in order for the government to intercept them]. We all said, fine, we agree with changing that, but in cases when the program ends up impacting Americans, there has to be some oversight.

What’s the status of your amendments? It’s been suggested that in the consent agreement to allow debate, Republicans are allowing straight majority votes only on amendments they know will fail—including yours.
We’re trying to make a record here, and to show who voted for what. My prediction is this thing will go through; it will be challenged and go through the courts. And eventually a Supreme Court with something like seven Republican-appointed judges will strike down the worst parts of it. This is a long-term battle to protect the rights of the American people.

In the modern political climate you’re more likely to hear about amnesty with respect to undocumented workers than you are about the amnesty for the phone and Internet companies who helped the government break the law before the act was passed.
 Oh, I think there’s tremendous feeling that there’s a problem here. In some ways I think it goes deeper than immigration. People see their own personal liberties affected. And we’ve seen that the telecom immunity does offend people. People may be nervous about giving a free pass [on immigration]. But what’s gonna bother them even more are the types of things I’m describing here: the level to which their privacy is being subjected to a “trust me” government that impacts their daily freedom and privacy. It really is disturbing to people with any kind of common sense at all.

It’s clear that Feingold thinks about these issues in the same way so many of us online think about the rule of law. He recognizes the need to be strong in the face of an administration that uses fear as their main weapon. Feingold’s efforts standing by the rule of law and defending the Constitution is the sort of courage that we need today from more of Feingold’s colleagues in the Senate.

Feingold isn’t optimistic about our chances to stop the SSCI bill from going through, but is taking a long view on it. He’s a bright spot in the Senate who, alongside Chris Dodd, has provided the kind of leadership we sorely need from our elected officials.

Debate is about to resume on the floor of the Senate about the FISA legislation. I hope we’ll get to see more passionate words and committed stands in the face of fear-mongering by the Bush administration and the Republican Party from some of Senator Feingold’s colleagues.

Cross posted at the CREDO Blog.

Take Action to Stop Retroactive Immunity

This afternoon the Senate will reconvene to begin considering a raft of amendments to the bad Intelligence Committee bill on warrantless wiretapping. Debate will begin at 2 PM Eastern, though no votes will happen before 5:30 and it’s still unclear if votes on FISA will happen today. What looks more certain is that Title II amendments are likely to be considered tomorrow, namely the Dodd-Feingold Amendment to strip retroactive immunity from the underlying SSCI bill.

I have a breakdown of all the amendments being considered (and cboldt’s work has been much linked to, for good reason) at the CREDO Action Blog. But what I’m most concerned about today is the part of this legislative fight that has garnered the most attention thus far: retroactive immunity.

We only need 51 votes for Dodd-Feingold to pass and though we aren’t where we need to be yet, we have just over 24 hours to lobby the Senate to get the votes we need to defend the rule of law.

George Bush and Dick Cheney are pulling out all the stops to give their friends at Verizon and AT&T immunity. Retroactive immunity would prevent us from finding out what the Bush administration asked these companies to do and who asked them to act outside of the law. It would also prevent the big telecoms from ever being held accountable for violating the privacy and rights of millions of Americans.

We can stop retroactive immunity, but we need you to ask your senators to vote for the Dodd-Feingold amendment.
Click here to take action through CREDO Action’s Senate contact tool.

Our country is at its strongest when we are governed by the rule of law, not the rule of rightwing ideologues and authoritarian presidents in bed with our largest corporations. Stripping retroactive immunity from the current bill would ensure that the Senate preserves the rule of law in America.

We’ve fought hard to get to this point. Thanks to the work of Senators Dodd and Feingold, this fight has been delayed and delayed since October of last fall. With each delay we’ve found ways to put more pressure on the Senate to pass a good wiretapping bill that doesn’t include retroactive immunity. Now we need 51 votes.

The Senate will vote this week, most likely on Tuesday. Can you take action and then get a few friends involved too?
I’m not going to sugar coat this for you – we have an uphill fight to get to 51 votes. But we’ll have no chance of getting there if we don’t use the next day to make our voices heard.
Update:
McJoan has a list of phone numbers for key targets in the Senate. I hope you use it!

Cross posted at Daily Kos and the CREDO Blog.

Disclosure: I was proud to help lead the fight against telecom immunity as part of Senator Chris Dodd’s presidential campaign. I have joined the CREDO Mobile team to stop the Bush administration’s illegal wiretapping program and hold the telecom companies accountable for their lawbreaking.

Tempering Enthusiasm on the FISA Amendments Agreement

I’m waiting for a response from Dodd’s Senate office about whether or not he could or would filibuster final passage of the SSCI bill, if it were to contain retroactive immunity. Contrary to what has been reported, getting a vote on the Dodd/Feingold amendment has never been a substitute for a filibuster. As a germane amendment to the underlying bill, Dodd/Feingold always deserved a straight majority vote. Going back to December, the expectation had been that Dodd filibuster after his amendment to strip retroactive immunity failed.

Also, I think this piece by Paul Kiel gets what this agreement means wrong. Agreeing to unanimous consent on which amendments get votes does not necessarily constitute agreeing not to filibuster. I don’t know how setting time limits for debate on certain amendments impacts whether a filibuster is possible or when in the process it would be able to take place.
It’s not that the GOP caved (to some extent they did) and the Dems didn’t. Caving just isn’t the right term for the process from an outcome standpoint. This particular round of negotiations is just that – a round of negotiations on process. The process is rigged because the SSCI remains the underlying bill. This has not changed and getting a raft of amendments to improve the bill is no real achievement. All the good amendments would have to pass to make the SSCI bill look like the SJC bill or the House RESTORE bill. And all of the amendments are not going to pass, so we’re still likely going to be stuck with retroactive immunity and expansive government surveillance powers in legislation coming from a Democratic-controlled Senate.

This slate of amendments is going to serve as a fig leaf to cover the Democratic caucus in the event that a still-bad SSCI bill is passed with some Democratic support. Democrats offered amendments, the amendments got votes, the votes failed. But in the end, it has to come back to the underlying bill.

Glenn Greenwald and Christy Hardin Smith have pointed this out already and I’m sure Tim Tagaris is thinking the same thing.

That said, we will have a very clear target on retroactive immunity: the Dodd/Feingold amendment getting 51 votes. The surest way to make a filibuster unnecessary would be to win on this amendment. Take action now through CREDO Action’s email tool!
Cross posted at the CREDO Blog.

FISA Debate Moves Forward

Democratic and Republican leadership in the Senate has reached an agreement about a slate of amendments to considered for the SSCI bill, as well as the voting requirements for each amendment and time allocated to debate. Here’s a run down of Democratic amendments that will be considered, via Senator Reid’s office.

Here’s the list of amendments that will require a simple majority (51 votes) to pass:

  • Dodd-Feingold: Striking retroactive immunity
  • Feingold: Sequestration – prohibiting the use of illegally obtained information
  • Feingold: Limit bulk collection
  • Feingold: Prohibit Reverse targeting of US citizens
  • Specter-Whitehouse: Substitution of the government as the defendant in telecom cases

These amendments would require a supermajority (60 votes) to pass:

  • Whitehouse: Minimization, a key in oversight of intelligence activities
  • Cardin: Sunset provision on the legislation at four instead of six years
  • Feinstein: Exclusivity of FISA – reiterates that FISA is the exclusive means for conducting electronic surveillance (This is the good Feinstein amendment)
  • Feinstein-Nelson: The “good faith” amendment to move civil cases against telecoms to the secret intelligence courts (This is the bad Feinstein amendment)

Cboldt has a detailed summary of the timing breakdown and the unanimous consent agreement. Booman Tribune has more details on what each of the Democratic amendments listed above will do.

The Republicans will also have a number of their amendments included for consideration. One key amendment from Senator Bond would actually make it easier for the government to conduct warrantless surveillance if WMDs are involved; this will only require 50 votes to pass.

There is good news and bad news. The good news is that key amendments by Democrats will be able to receive votes and, if the full slate of these amendments pass, the bad SSCI bill will start looking more like the good SJC bill. The bad news is that most of the vote requirements have been set outside the number they will likely be able to achieve. It is unlikely that there will be 51 votes to stop retroactive immunity (probably in the 40s at most), so even when the Dodd/Feingold amendment gets “fair” treatment, it isn’t likely to cause Bush and Cheney to break a sweat. The rest of the Democratic amendments to improve this legislation are unlikely to all pass, so it is quite possible that this is all going to serve as nothing more than window dressing on a bad bill.

Debate on the amendments is expected to begin on Monday, with voting potentially starting as early as Monday night. The whole process of debating and voting on these amendments would probably take two to three days in whole.

Christy Hardin Smith makes a good point before calling her readers to action:

It is worth saying, again, that a lot of this could have been avoided had Majority Leader Harry Reid opted to use his power under Rule 14 to use the SJC bill as the base bill — or the House-passed RESTORE Act, which includes the good amendment provisions already.

We’re in a situation now where there will be a tremendous amount of work to get things to come out in a decent place. Senator Reid failed to set the table for victory. We’re where we are now because so many people have stood up and joined the work of Senators Dodd and Feingold to stop retroactive immunity. Sure, today things could be worse and the Intel bill could have already been passed without improvement. But there was always a better way to do this.

Nonetheless, we now know that we have an opportunity to vastly improve the legislation before the Senate. Email your Senators through the CREDO Action tool. Here’s a list of key senators that need to receive calls telling them that we expect them to vote against retroactive immunity for the telecom companies. Make sure that the Senate continues to hear from us as we approach these critical votes.

Cross posted at the CREDO Blog.