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FISA Debate Update

leah's picture

CD updating the update to reflect the latest news: Reid has pulled the bill.

Well, we're into it - a full-throated Senate debate on many of the dearest, in all senses of that word, fundamentals of constitutional government,

The opening, as Lambert has suggested, was a bit confusing.

Dodd gave a passionate analysis of the many strands of this new FISA legislation, meant, mainly on the Democratic side, to correct the excesses of last August's Protect America Act, which more or less gutted the FISA court as a check on the power of the executive branch to secretly ignore the civil liberties of Americans not to be spied upon by their own government.

To talk process for a moment, the thrust of Dodd's first speech was in support of the many and profound reasons why the Senate should not proceed on the matter at hand as long as the Intelligence Committee's version is the basis of the debate and the subsequent voting on the entire issue. In other words, he was arguing against the imposition of cloture, so that the Senate might spend time debating the merits of substituting the Judiciary Bill as the basis for debate and amendment.

It didn't look or sound to me like this was Dodd's attempt to get a genuine filibuster going, and indeed, the vote was lopsided in favor of cloture, all Republicans voting yes, only ten Democrats voting no.

This is not the end of the debate by any means, though, and from what I've seen thus far, do not despair that passage of the Intelligence Committee's version of this new FISA bill is a done deal, including the extending of amnesty to those Telecoms which choose to go along with the administration. Here's why:


After a good speech by Barbara Boxer, and a second one begun by Dodd, in the absence of Feinstein who was late to the floor to claim her time, Dodd graciously gave her the floor upon her arrival. She proceeded to announce what I thought were two bombshells - her support for two amendments which she mentioned twice needed to be in any FISA bill she votes for. The amendments are being offered in concert with Rockfeller, Leahy and Bill Nelson.

The first amendment Feinstein dubbed as an "exclusivity" clause, which turned out to be about upholding the FISA court as the sole and exclusive entity which can approve surveillance within the United States, and surveillance of Amerian citizens when they are overseas. The amendment would mirror a similar clause in the House FISA bill, and would effectively close the loophole opened by the administration's legal opinions which located the President's right to ignore FISA in the original AUMF passed by congress after 9/11.

The second amendment Feinstein sent to the desk has to do with amnesty. It will not satisfy many of us, including me, but it will make passage of the Intelligence Committee version of the bill more difficult than Republicans or the White House will like.

Feinstein's amendment, remember it's also backed by Rockefeller and Leahy from what I could gather, would send the whole matter of amnesty to the FISA court itself, who would have to be allowed to view the actual written enticements and legal justifications employed by the administration to secure the cooperation of said Telecoms in extending the reach of the NSA's ability to surveil Americans.

Thus, it would be up to the FISA court to decide, independent of either congress or the executive, whether or not any and/or which lawsuits should go forward.

The reason I think this is a big deal, it's entirely unlikely that Republicans can accept the amendment, and surely the White House won't, which means, according to that first statement by Feinstein, even she would not vote for any version of FISA which didn't contain this amendment.

I suspect Senator Leahy went along with this compromise on amnesty because he also suspects it undermines what appeared to be a bipartisan consensus in the Intelligence Committee by substituting an entirely reasonable alternative which Republicans will simply not be able to embrace because of their commitment to running interference for the White House.

If that happens, all bets are off, because the consensus is shattered.

Next, Ron Wyden gave a terrific speech, spotlighting the need for protection for Americans when they travel overseas. In the process, he demanded that the White House make available to all members of the Senate the legal opinions used to seduce (not his word) the Telcos into cooperating with the administration, outside the purview of either FISA or the congress. Apparently Wyden is also offering an amendment which will insure that travel overseas does not give an administration the right to avoid going to FISA to electronic surveil American citizens.

The Republican arguments looked like exactly what they are; ideological and partisan attempts to cover the administration's ass. All the right notes were struck, fear of terrorists, lies about extending 4th amendment rights to terrorists overseas, calls to bipartisan consensus, charges that the Judiciary Committee bill was passed along partisan lines and after almost no debate. Hatch was at his Mormon best, slamming those partisan terrorist loving-Dems.

Democrats came back and ate his arguments alive.

I have a fair ear for political arguments that work even if they are foolish and wrong-headed, but this time around, my take - the Republicans look bad.

Oh, and by the way, the Democrats look damned good.

That's it for now.

No votes yet


Submitted by lambert on

I am so happy that Dodd is doing this, and so proud of him, of every real Democrat who's standing with him.

As I said:

We are Democrats. They are enablers.

We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan

leah's picture
Submitted by leah on

But it's not just Dodd. All the speakers have been doing a top-notch job.

Even Feinstein had her moments; she did a good job knocking down the absurdity of the argument that anyone meant to give the President extra power to be able to shred the constitution and ignore congressional legislation, like the FISA law when they voted for the AUMF for Afghanistan.

Feingold, Ben Cardin, Whitehouse had a good speech, I think it was he, but Dodd has been a towering presence - what they've all been able to do so well is to talk about the issues of civil liberties, the history of FISA, what prompted it in the late seventies, in language that any American can understand and feel personally affected by. They've been brilliant at demolishing Republican arguments, outrage, and attempts to cast this as our last best chance to avoid another terrorist attack.

If this were being shown as a prime time event I have no doubt that the Intelligence Committee version would be dead by now, based on post even polls, even if they were conducted by Frank Luntz.

They may turn to the omnibus budget bill tomorrow, so we should keep the pressure on in terms of calling Senators.

Submitted by lambert on

Crowded schedule, and so on.

Operative word, of course, being "says."

So, we'll see what machinations the criminal Bush regime and its Democratic enablers get up to, to recreate the climate of fear.

Perhaps a real war on Christmas?

Oh, and nice to see HRC, Obama, Biden there on the floor, helping out, showing Democratic solidarity on an issue that matters deeply to the future of our country.

Oh, wait. That didn't happen?


We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan

MJS's picture
Submitted by MJS on

No doddering fool, is he...

Thank you, Senator Dodd! And thank you to all those who stood with him. As to the rest, gather your coats and be gone with you.


Tinfoil Hat Boy's picture
Submitted by Tinfoil Hat Boy on

It ain't over until it's over, but the good guys won today.

I still want to believe this is kabuki, not Reid being a horses ass.

"A small group of thoughtful people could change the world. Indeed, it's the only thing that ever has." - Margaret Mead

bringiton's picture
Submitted by bringiton on

telecom immunity is wrong, presented by major Democratic leaders including Dodd, Kennedy (hat-tip, line of the day), Whitehouse, Cardin, Wyden, Nelson, Boxer, Feingold and even an assist from the archfiend Feinstein. Republicans got to offer their position and looked like what they are, a pack of liars. This was as thorough an arguing as could be wished, all televised and the focus of every news outlet in the nation, a wonderful, memorable event; enough to let a person feel proud to be an American.

Then surprise, surprise, Horrible Harry Reid up and pulls the bill off the floor. Puts it on the shelf until January. Or never. And now congressional Republicans and wobbly Democrats get the holidays to think over Kennedy’s argument – that Bush is willing to endanger America to protect himself and his telecom buddies – and decide which side they want to be on in an election year.

Huh. A suspicious person might think it had all been planned to work out just this way.

Many thanks due to all who made this happen, openly or otherwise.

Submitted by lambert on


[REID] This is an issue that the American people are focused on. I've gotten in the last week or so, thousands of inquires from all around the country. This is an issue they understand, [you're welcome] they don't like."

Maybe next time I take down Jello Jay's switchboard that asshole will listen.


I should underscore that the idea for Dodd's hold originated with blogs and was prompted by blog readers urging Dodd to announce one (which he did within hours). That has had a genuine, direct impact on this process, and has been instrumental in ensuring that if the dirty deed is to be done, at least it won't be done quietly and easily.

And the best part of the day? Hearing that slippery sanctimonious little scut Orrin Hatch having a hissy fit about "fringe bloggers." Boy, was he pissed. Excellent!

Obviously, I don't want to succumb to blogger triumphalism, and there's plenty of time for the criminal Bush regime to stampede Democratic enablers again. The playbook has not changed.

But I do believe that we made a small, but real, difference.

Kudos to Dodd, Boxer, Kennedy, the rising star Wyden, and Feingold (that I heard). Even DiFi appeared not to totally suck, so maybe momentum is changing.

And HRC, Obama, Biden? Your "support" meant about as much as Sternly Worded Letters. Sucks to be you.

NOTE Reward good behavior here.

We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan

Submitted by lambert on


We. Are. Going. To. Die. We must restore hope in the world. We must bring forth a new way of living that can sustain the world. Or else it is not just us who will die but everyone. What have we got to lose? Go forth and Fight!—Xan

chicago dyke's picture
Submitted by chicago dyke on

just because lambert is too much the gentleman:

I should underscore that the idea for Dodd’s hold originated with blogs and was prompted by blog readers

heh. for glenn, this is like ALLBOLDCAPSUNDERLINE. sober minded, stern, constitutional formal glenn is engaging in a little blog triumphalism, and so shall i. the bottom like as that we made this happen, drew a line and asked "just one Senator" to step up to it.

and it wouldn't be me if i didn't say

being cynical, the way to look at this is to understand what motivates a pol at any given time. dodd's campaign (for veep or sec of x spot, he's not really expecting to win) needed a shot in the arm. what better way than to pick a righteous cause that moderates and actual conservatives can appreciate too? obviously the liberal base loves it. he's prolly flush with some cash right now too. in the pathetic environment that is "the candidates," just doing what's right by the constitution makes him a superstar. what is golf-clap worthy becomes a reason to shout and cheer, sigh.

the question to me becomes how then to motivate hillary or "omaba" (snicker) or even some of the critters not running for anything, to step up and take the stage on an issue. if we only get one of them to do this every time evil is considered, well- at least government will then mean nothing bad will happen. what's the motivation? how do we get them to see acts like these as good for them, for their ultimate goals? i suppose individually; it would seem to me that they are "democrats" for a reason; each of them must have one pet issue we can use as a pressure point/spine strengthener. i