Order of Senate Amendment Votes Today

Last night Senator Reid listed the order in which FISA amendments will receive votes today. Voting starts around 10 AM Eastern. I’m pulling links for each amendment from Cboldt’s great post on the UC agreement. Three of the eight remaining amendments require 60 votes to pass, the others require a majority to pass.

  1. Whitehouse amendment #3920 (compliance reviews) (60 votes required)
  2. Feinstein amendment #3910 (exclusive means) (60 votes required)
  3. Feingold/Webb amendment #3979 (sequestration)
  4. Dodd/Feingold amendment #3907 (strike immunity)
  5. Feingold amendment #3912 (certifications)
  6. Bond amendment #3938, as modified (WMDs)
  7. Specter/Whitehouse amendment #3927 (substitution)
  8. Feinstein amendment #3919 (FISA Court) (60 votes required).

Exercising His Right to Talk A While

Update: Here’s a clip, courtesy of Selise.

Tonight Senator Chris Dodd spoke on FISA for over two and a half hours and past the 10 pm hour. I’ll have text of his prepared remarks tomorrow morning and I’m trying to track down video now. Of note was his references to blogger Glenn Greenwald in his speech…

John Amato pulls this great line:

Dodd: Personal privacy is protected because it is essential to liberty in the pursuit of happiness. Our Constitution checks the power of government for the purpose of protecting the rights of individuals in order that all our citizens may live in a free and decent society.

Also, McJoan at Daily Kos says in four sentences what took me 2,000 words earlier tonight. Huzzah for brevity!

The procedure for tomorrow is that votes on the outstanding amendments will begin at 10:00. After these votes happen, they’ll have the cloture vote. When Leahy and Dodd say they will filibuster, it means that they will vote against the cloture vote on the bill to continue debate. If they are successful in preventing 60 votes for cloture, the debate can continue for as long as 30 hours. If they fail to prevent cloture, Dodd has four hours reserved for him and his colleagues like Leahy to convince enough fellow Dems to vote against final passage.

…Which proves yet again, there are reasons that Joan is a front-page at Daily Kos and I’m not.

FISA Process, Unanimous Consent, & Dodd’s Filibuster

I’m going to do two things in this post. First, I will explain the likely legislative process on FISA in the Senate and House. Second, I will discuss Chris Dodd’s course of actions regarding a filibuster and where that stands now.

Tomorrow looks to be the big day for FISA votes in the Senate. Senator Dodd’s amendment to strip retroactive immunity from the underlying SSCI bill will be given a vote – it will need 51 votes to pass. Other amendments pertaining to retroactive immunity will also be given votes – Whitehouse’s substitution amendment and Feinstein’s “good faith” amendment. The bad news is that these amendments are all likely to fail, though Feinstein’s might have the best chances of passing, even with a 60 vote threshold.

Following the votes on all remaining amendments – a number are still out there on Title I of the SSCI bill and would succeed in improving congressional oversight of domestic surveillance – there will be a cloture vote on the bill. If we have any hope to stopping retroactive immunity and a bad Intel bill in the Senate, this is it. Most likely, though, the Republican caucus will be joined by a significant number of conservative Democrats and cloture will pass. After cloture, Senator Dodd will have up to four hours to speak in opposition to the bill. He may share some of that time with Senators Feingold, Leahy, and Kennedy. No more than 30 hours after cloture passes, there will be a vote on final passage of the SSCI bill. That will probably pass and the Senate – thanks in large part to the diligent work of Jay Rockefeller and the decision-making of Harry Reid – will have given George Bush, Dick Cheney, and the big telecom companies what they wanted.

As the Senate version of FISA reform legislation is dramatically different from the RESTORE Act, passed by the House last November, there will be a conference committee to sort out the legislation. Unless both chambers quickly pass another 15 day extension to the Protect America Act, the conference committee will have to finish their work and send it along for votes by this Friday, when the PAA is set to expire. Once it’s out of conference, no amendments will be allowed to the legislation, so the bill will only be voted on by the two chambers and not modified any further.

Now, here’s where things get worse. It’s possible that during the conference committee, Blue Dog Democrats in the House will side with the GOP and lobby hard for retroactive immunity. If the conference report strips retroactive immunity (that is, if Title II of the RESTORE Act prevails over the SSCI version), then the conference report will most likely fail to pass in the Senate. Jay Rockefeller and somewhere between 14-16 Blue Dogs in the Senate will join the Republicans to oppose the bill. When the Senate voted on the Protect America Act last August, sixteen Democrats voted with the Republicans in favor of the bill; that roster is a good starting place for potential aisle-crossers this time around. We’re clearly up against real obstacles in both the House and Senate Democratic caucuses.

To finish up the process side of this, the conference report will be introduced in the Senate (and House), cloture will be filed, cloture will ripen, there will be a cloture vote, there will be up to 30 hours for debate (though no guarantee it will all be used), and then there will be a vote on the conference report. Again, it’s my understanding that the goal of the Senate leadership would be to have all of this take place by Friday if no extension is passed. Without an extension, the telecoms will likely have retroactive immunity by the end of this week.

Now, I think there’s a need to look back at this process and answer some questions about what brought us here and what, if anything, could still be done by someone like Chris Dodd to stop the bill from moving forward. I’ve previously been highly critical of the unanimous consent agreement brokered by the Democratic and Republican leadership in the Senate, but will be offering a defense of Dodd’s vote in support of the agreement in the context of the course of events and what alternatives existed in this legislative fight.

The short version is that the unanimous consent agreement which negotiations between Democratic and Republican leadership produced about two weeks ago included a cloture vote (which will be taking place tomorrow) and that limits the ability of Senator Dodd to draw out debate beyond what is currently taking place. Cloture was filed on the underlying SSCI bill on Friday, so today’s debate has been taking place while it is ripening.

The question at hand is: Has Dodd done all he can? Has he filibustered? Is he breaking his promise to filibuster any bill that includes retroactive immunity?

There are a number of levels at which I can try to answer these questions. The short view is the UC agreement that’s governing the debate, which Dodd consented to, does not allow him to draw out debate beyond tomorrow’s cloture vote. Did not objecting to UC constitute a failure to uphold his promise to filibuster? I don’t think so, and here’s why:

The negotiations had been very slow going and hinged in part on the vote totals required to pass each amendment. While some Senators were willing to raise their vote total to 60 (Feinstein, Cardin & Whitehouse), Dodd refused. As a result of standing firm, he was able to get consent from people like Rockefeller who didn’t want Dodd’s amendment to require a simple majority. But the tradeoff was that he had to consent to the UC agreement as well. That included cloture. Now, the reality is that had Dodd sought to extend debate following his amendment’s failure, someone would have filed cloture at some point on him. There’s no way to reasonably argue that cloture would not have been filed to stop Dodd from talking and move to vote on final passage. In that regard, I don’t think consenting to cloture in the UC agreement constitutes him breaking his word on the filibuster.

The other main feature to note in the negotiation of the UC agreement was that it was taking place under duress. Senator Rockefeller was threatening the Democratic leadership that if they didn’t sort out a UC agreement that would allow debate to move forward, he and a block of Blue Dog Democrats would support Republican efforts to pass cloture on the SSCI bill before any amendments could be voted on. Recall that Rockefeller and the Blue Dogs had previously voted with the rest of the Democratic caucus to stop the Republican efforts to have cloture on the SSCI bill earlier in the fight. The threat Rockefeller was levying was simple: agree on how we’re going to proceed or you won’t get to put any amendments onto the SSCI bill.

The UC agreement included a simple majority vote to strip retroactive immunity from the underlying bill. Dodd had long said that he sought a majority vote on his amendment – that’s why he stopped the SSCI bill cold last December, by refusing UC on the motion to have all amendments require 60 votes. Agreeing to the UC agreement allowed him to have that. Disagreeing would have likely prevented from their being any vote to strip RI from the SSCI bill.

Though it’s unlikely that any Democratic amendments receiving roll call votes under this UC agreement will pass, it’s also worth noting that the agreement did include updates to Title I to make it technically somewhat better through the manager’s package. I’m not going to sit here and tell you it went all the way to turning it into a good bill – it didn’t. But it is more than we would have gotten had Rockefeller and the Blue Dogs sided with the GOP and steamrolled the process.

If Dodd had objected to UC, we would not have a chance to amend the underlying bill. We would not have gotten the improvements agreed to in the manager’s package. Rockefeller and the Blue Dogs would have flipped, and we’d end up with the SSCI bill moving forward in worse shape. I’ll grant that we’re going to end up fairly close to that point anyway, but I do not think that objecting to UC because the option was open to him would have been the best course for Chris Dodd. This way, his amendment to strip RI will get a vote tomorrow. It needs a majority to pass and there are 50 Democrats in the caucus. We’re not going to get closer to defeating retroactive immunity in the Senate than that and it’s simply a shame that so many Democrats support immunity. It’s also a shame that Harry Reid does not have the same control over the Democratic caucus as Mitch McConnell has on the Republican one.

Lastly, the rules of the Senate aren’t what they used to be. The rules don’t allow Dodd do to a stand up, “Mr Smith Goes to Washington”-style filibuster like Strom Thurmond did on civil rights legislation. From a practical standpoint and in my assessment, Dodd has been filibustering the SSCI bill since December 17, 2007. His filibuster has allowed us time to organize grassroots pressure on the Senate. It has allowed us to get get votes on amendments that will improve the underlying bill. It has kept the Republican Party’s efforts to destroy the rule of law in the spotlight for all to see. It has taken an issue that Bush, Reid, and Rockefeller wanted done in a matter of hours so the Senate could go on Christmas vacation and stretched the process out over eight weeks. At a certain point, we have to recognize that we simply do not have the 41 votes needed to defeat cloture and uphold Dodd’s filibuster.

I know that Dodd’s course of action may not be what some people expected. Given the reality of the situation and given the rules of the Senate, I can honestly say that I do not know what else Dodd could have done to ensure a different outcome. That may not be what some others think, but please note that I make this judgment this as someone who desperately wanted to see the Senate kill retroactive immunity and has been as thoroughly invested in the fight as just about anyone else out there.

In my eyes, the blame for retroactive immunity passing in the Senate will lie with two people: Jay Rockefeller, for holding a gun to his Democratic colleagues while trying to ensure his buddies at Verizon and AT&T get their “Get Out of Jail Free” card, and Harry Reid, for inexplicably choosing to make the SSCI bill the underlying bill before the Senate and not the better alternatives provided by the Senate Judiciary Committee and the House of Representatives. Reid also circumvented Dodd’s hold on the SSCI bill; under normal circumstances, the hold would have been the most powerful weapon Dodd had it his disposal. Reid’s decisions, more than anything else, made it impossible for us to pass a bill without retroactive immunity in it.

At the end of the day, to defeat retroactive immunity and to uphold a filibuster, Chris Dodd needed more support for his efforts than exists in the Senate. He needs 40 other Democrats and the sad reality is that there are not 40 other Democrats who are opposed to retroactive immunity. Dodd was our strongest ally in the fight, but he couldn’t win it on his own. I respect and appreciate the work he has done and though I wish the outcome were different, though I wish he could have done something to else to stop this legislation from moving forward, the obstacles set by Harry Reid, Jay Rockefeller, and an all-too spineless Democratic caucus were too much for him to overcome.

***

It should be worth noting that I no longer have any connection to Senator Dodd’s campaign, nor his Senate office, and I am speaking solely for myself here.

China’s Olympics: Still Not Promoting Freedom

Not only have people in China and Tibet seen a reduction in press and internet freedom, Western athletes are now getting gagged.

British athletes selected for this year’s Olympic Games in Beijing will be asked to sign a contract that forbids them from criticizing China’s human rights record.

Graham Nathan, spokesman for the British Olympics Association (BOA), told CNN that “British athletes will have to sign a contract promising not to comment on any politically sensitive issues.”

He added that they won’t go further than what is required by the International Olympic Committee charter which restricts demonstrations of political propaganda at an Olympic Games.

Athletes who refuse to sign the agreement will not be allowed to travel to compete in the Games from August 8-24, according to a sunday newspaper report.

How’s that decision to send the Olympics to China looking, Jacques Rogge of the I.O.C.?

The IOC granted the Olympics to China, justifying their decision with the promise from the Chinese Communist Party that they would liberalize speech and media regulations. They would let the press report whatever they wanted and they would grant their citizenry more freedoms. The IOC, wrongly, took them at their word. There has never been any follow-up by the IOC. There has never been any substantive response to the long-running crackdown on internet and political dissidents in China and Tibet.

And now, we see a major Western democracy cave to Chinese (and undoubtedly IOC) pressure by requiring their athletes to gag themselves if they want to compete in Games most have trained their whole life for.
Does the BOA really think that critical remarks from their athletes are such a threat to China’s government that their words have the potential of bringing down the Chinese government? Apparently nothing is more dangerous to China’s Olympics than the truth.

This is simply reprehensible.

Greenwald on Retroactive Immunity

Glenn Greenwald offers another response to the Wall Street Journal editorial hawking retroactive immunity for big telecom.

The telecom amnesty debate is controversial but it is not complicated. The Government asked telecoms to break numerous federal laws in exchange for profit. Some telecoms refused to do so and others — such as AT&T and Verizon — agreed to break the law for years. Which behavior do we want to encourage and reward — (a) telecoms which turned down the substantial government contracts to enable warrantless spying on Americans because doing so was illegal, or (b) the telecoms which purposely broke our laws by allowing illegal government spying on Americans? How can that even be a debatable question?

As the Senate votes on amnesty tomorrow, the only real question is whether telecoms which broke our laws should be accountable in a court of law for their illegal behavior (the way things are supposed to work in a country that lives under the rule of law) or whether Congress, lavishly funded by this industry, will pass a law that has no purpose other than to give them the retroactive license to break our country’s laws with impunity.
…
Whatever else is true about these telecoms that are about to be granted this extraordinary gift from Congress — no matter how many times they are lavished with the creepy Orwellian phrase “patriotic corporate citizens” — it is undeniable that they are deliberate lawbreakers. That’s why they need amnesty in the first place. Any amnesty advocate who denies that central fact is arguing from a position of deep dishonesty. Bestowing retroactive telecom amnesty is nothing more than the latest step in creating a two-class legal system in America, where most citizens suffer grave penalties if they break the law, while our most politically powerful and well-connected actors are free to do so with impunity.

Take action now and ask the Senate to oppose retroactive immunity for big telecom companies like Verizon and AT&T that helped the Bush administration spy on American citizens.

Cross posted at the CREDO Blog.

Benen vs. WSJ

Steve Benen takes on the Wall Street Journal’s FISA-related editorial today, which notably discusses something called the “anti-antiterror left.” Benen responds:

First, referring to the “anti-antiterror left” is just sad. The Wall Street Journal isn’t just some random posting on the Free Republic. Editors should probably try to aim a little higher.

Heh, indeedy. At least Mitt Romney had the balls to call us terrorists.

Benen goes on to provide a series of substantive rebuttals to the vacuous arguments provided by the WSJ.

Second, as far as the WSJ is concerned, any legal requirements, and any effort to provide checks and balances on administration power, is necessarily seen as the U.S. “tying its own hands in the fight against terrorists.” The newspaper’s editorial board, in other words, believes the only responsible course of action is to let the Bush White House have unfettered surveillance powers over Americans, without exception. What about the possibility for abuse? We should simply trust the administration to be restrained and responsible. Those who disagree are guilty of wanting to weaken America.

Third, the WSJ is so unhinged, it argued, in print and without a hint of jest, that the left’s “goal” is to prevent wiretaps. It’s as if the Journal’s editorial board has slept through the last couple of years of debate, and feels comfortable simply making up rationales to smear those who take the rule of law seriously.

And fourth, my personal favorite, is the notion that Congress and the president have to intervene in ongoing legal proceedings, and clear companies that already broke the law of any wrongdoing, otherwise the telecoms will never cooperate with the federal government again. It’s as if the WSJ has no idea what “warrants” and “judicial oversight” even mean.

Let’s be candid: The WSJ is providing noise and nothing more. There are many arguments out there that try to undercut efforts to solidify congressional oversight of domestic surveillance. I’ve been watching pretty much every word said in the FISA debate on C-SPAN 2 and trust me, the Senate Republicans aren’t doing much better than this. Facts are not relevant, only narratives that make Dems look bad. Though Carl Hulse of the NY Times wasn’t interested in telling the substantive legislative story of what’s happening in Congress, he was spot-on in his assessments of how this is going to turn into (or rather, continue to be) a vacuous political pie fight that culminates with Democrats being likened to terrorists.

Tom Lantos Has Died

Very sad.

WASHINGTON (AP) — A spokeswoman for Rep. Tom Lantos of California says the congressman has died.

Spokeswoman Lynne Weill said Monday morning that the 80-year-old Lantos, the only survivor of the Holocaust to serve in Congress, died at Bethesda Naval Medical Center.

Lantos, a Democrat who chaired the House Foreign Affairs Committee, disclosed last month that he had been diagnosed with cancer of the esophagus.

Lantos may not have been the most progressive Dem out there, but he was one of the strongest supporters of human rights in Tibet and Tibetan efforts for freedom. My background is in the Tibetan independence movement and so I’ve always looked very fondly on Lantos, even while not agreeing with him on other foreign policy issues. He was a huge ally in the fight against Google.cn, a search engine designed to censor information people in China and Tibet could access. Lantos spoke out forcefully against Google’s weaselly self-defense.
These words are likely what I will most remember Lantos for, as they speak to his moral clarity when it comes to human rights and freedom:

Companies that have blossomed in this country and make billions, a country that reveres freedom of speech, have chosen to ignore that core value in expanding their reach overseas and to erect a “Great Firewall” to suit Beijing’s purposes.

These massively successful high-tech companies which couldn’t bring themselves to send their representatives to our Human Rights Caucus briefing Wednesday on China and the Internet should be ashamed. With all their power and influence, wealth and high visibility, they neglected to commit to the kind of positive action that human rights activists in China take every day. They caved in to Beijing’s demands for the sake of profits, or whatever else they choose to call it.

[…]

It has also been argued Internet companies are entitled to apply the same rules of engagement in China that they apply elsewhere. In Germany, for example, where denying the Holocaust is against the law, access to Neo-Nazi Web pages is impossible via Google. The company notifies its users that not all Web pages may be available. And in its new China services, Google issues a similar warning.

But as the only Holocaust survivor ever elected to Congress, I cannot begin to describe how disgusted I am by this particular argument. Because, in essence, it equates the vile language and evil purposes of Neo-Nazi groups and hate speech with content provided by the human rights activists of Falun Gong, by journalists and by democracy activists in China. There simply is no comparison between efforts of the democratically-elected government of the Federal Republic of Germany to move against hate-mongerers, and the Chinese regime cracking down on religious freedom, human rights and democracy.

China’s appalling human rights record never was a secret. U.S. Internet companies simply cannot claim they had no idea of what doing business there could entail. The Internet has always been a vital tool for human rights and democracy advocates in China, and a vital link with the outside world of its oppressed people.

Our Internet companies should have known, because for years their most loyal customers in China have gone to extraordinary technical lengths to bypass government’s controls of the Internet.

If these companies had stood up to Beijing from the beginning, demanding that they retain physical control of their own servers by having them located outside of China, the picture would be very different today.

This is a sad day.

The Politics of FISA

Carl Hulse of the New York Times has an update on this week’s FISA debate in the Senate. Not surprisingly, the piece appears on the NYT Blog and not the actual print edition of the paper.

The article is solely a rehashing of what political narratives each party will try to use to shape the debate. From the get-go we see Hulse has adopted Republican framing of the debate, describing it as one of “national security.” Actually, as someone who has been deeply involved in this and in regular contact with Democratic Senate offices on their work on this legislation, this is a debate about American civil liberties, the status of the rule of law, and ensuring that the Congress doesn’t pass unconstitutional legislation.

In a paragraph that could have been better used to describe the substantive policy differences of Democrats and Republicans on FISA, Hulse lays out the he said-she said of competing political narratives.

With Republicans making it clear in the last few days that they again will make the terror fight a main element of their campaign message, the exchanges could get more heated. But Democrats plan to fire back and are planning a series of Congressional hearings to show how Bush administration policy has weakened the military, reducing its ability to respond to threats while impairing the National Guard’s ability to react to domestic catastrophes.

I really wish the media would recognize that important things are happening in the Senate. Legislation is being debated that may be turned into political ads this cycle, but will also be determining how the US government conducts surveillance of Americans for the next six years. Likewise, I wish the Senate Democrats were more willing to use their power to conduct hearings to correct problems, not merely document them for the press.

The reality, though, is that the FISA debate has largely been intertwined with political narratives about national security and terrorist threats. The Democrats remain petrified of the thought that the Republicans will say mean things about them to the press and in campaign ads. They worry that if they don’t give the President everything he wants – as Jay Rockefeller and Harry Reid seem intent on doing – that the RNC will put attack ads on the air, telling America that Democrats are giving terrorists the same rights as American citizens. Never mind that Democrats are pushing legislation that does nothing of the sort. Never mind that even if the Dems march lockstep with the GOP on this issue, the Republicans will still run attack ads accusing them of siding with the terrorists, or in Mitt Romney’s case, accuse them of being terrorists.

The inability of Senate Democrats to work from a fundamental understanding of how Republican attacks works is no small part of the story of why they are caving so profoundly on FISA legislation. The fear-driven Democratic caucus under the milquetoast leadership of Harry Reid is on the verge of passing the SSCI bill, despite the strong possibility that they will not pass a single amendment to improve the underlying bill.

By this time Wednesday morning, it’s likely that the voting will be done in the Senate and the only obstacle to retroactive immunity will be progressive Democrats in the House. At this point, I can’t speculate optimistically about the chances for the House holding strong. We can expect Republicans in the House will support en masse the SSCI bill; if the Blue Dog Democrats decide they want retroactive immunity for the telecoms, it will almost certainly guarantee that the Senate version will pass largely intact, just as President Bush, Vice President Cheney, and the CEOs of Verizon and AT&T wanted.

Cross posted at the CREDO Blog.

Count It

Matt Yglesias takes on Clinton campaign spin on what does and does not count for primary/caucus wins:

Back in October 2007, Clinton was beating Obama in Maine by a hilarious 47 to 10 margin, but it seems he’s carried the state today, once again by a large margin. My understanding, though, is that this doesn’t really count because it’s a small state, much as Utah doesn’t count because there aren’t many Democrats there, DC doesn’t count because there are too many black people, Washington doesn’t count because it’s a caucus, Illinois doesn’t count because Obama represents it in the Senate even though Hillary was born there, Hawaii won’t count because Obama was born there. I’m not sure why Delaware and Connecticut don’t count, but they definitely don’t.

Separate from the relative absurdity of how the campaigns spin the media and the public, it strikes me as obvious that the reason we have over 50 primaries and caucuses is because they all count.* No one win is inherently representative of more than itself until spin is added; that is, Obama won x delegates more than Clinton in Maine, a clear sign that he’s bringing himself closer to the total needed for the nomination. And he can win the Maine Democratic caucus.. At minimum, narratives following wins can’t realistically be crafted to suggest that a win is a sign of a loss. When the Clinton campaign casts wins as something other than that, they’re wading neck deep into absurd waters.

*Except for, you know, Michigan and Florida.