Friday, January 25, 2008

FISA - Part Deux

With Part One being the Protect America Act. FISA amendment continues down a bumpy parliamentary and political road. In short, the current procedural status provides for two diverging options on Monday, either move to adopt a slightly modified Intelligence Committee version (#3911) with limited debate, or extend the Protect America Act by 30 days (#3918)

In addition to S.Amdt.3918, there are two stand-alone extension options. One is S.2541 (the same text as S.Amdt.3918), the other is S.2556. I don't understand why the second stand-alone was offered, as it seems to have exactly the same 30-day extension effect. Perhaps there was some formal deficiency in the path of S.2541 reaching the legislative calendar.

Link to Summary of January 24 legislative action


  • Rockefeller/Bond No. 3911, in the nature of a substitute.
  • Feingold/Dodd No. 3909 (to Amendment No. 3911), to require that certain records be submitted to Congress. [Redacted FISA Court pleadings and FISA Court legal rationales, where significant legal issues are fleshed out]
  • Bond No. 3916 (to Amendment No. 3909), of a perfecting nature. [To exclude all pleadings, lock stock and barrel, from release to the Congress]
  • Reid No. 3918 (to the language proposed to be stricken by Rockefeller/Bond Amendment No. 3911), relative to the extension of the Protect America Act of 2007.
    A motion was entered [by Senator McConnell] to close further debate on the motion to invoke cloture on the Rockefeller/Bond Amendment No. 3911 ... a vote on cloture will occur at 4:30 p.m., on Monday, January 28, 2008; provided further, that the cloture vote be deemed as having occurred at 12 noon, on Monday, January 28, 2008.

    A motion was entered [by Senator Reid] to close further debate on Reid Amendment No. 3918 ... a vote on cloture will occur on Monday, January 28, 2008.

I'm sticking with my prediction that the near-term end result will be an extension (and that the long term or ultimate end result will be passing what the administration demands). For a change, Reid is correct when he says progress on this is stalled by the Republicans. The game is exceptionally hardball on this bill, as the administration is holding firm on its threat to reject a FISA bill that gives them exactly intelligence gathering tools they ask for (which amount to absence of independent oversight), but does not provide retroactive amnesty and immunity from suit to telecoms.

I personally find that stance to be an overreach. See WH policy statement of December 17 for the express will veto language. The policy statement also expressed two significant reservations about the SSCI version, in particular the privacy rights it purports to accord to Americans abroad, and a requirement to count the number of persons in the US whose communications were reviewed without a warrant.

I highly commend the WH policy statement as a concise summary of the issues. It's much easier to read and understand than the dense statutory language, and it's a great tool for understanding the issues in general. An additional (similar) composition is found at WH policy statement relating to H.R.3773.

I think debate today and Monday will be substantively light, and if on the subject of FISA, will consist of the usual finger pointing to establish blame for delay, soft on terror, etc. The next scheduled vote is Monday's 4:30 p.m. cloture vote to cut off debate on the SSCI version of FISA.


Mundane and repetitious opening by Senator Reid. No roll call votes today, germane amendments to the substitute must be filed by 1:00 p.m. today, the Democrats are not weak on surveillance, the Republicans want to give the administration too much, the Republicans are responsible for preventing S.2248 from advancing.

Senator McConnell rebuts, saying it's a little early in the session to begin finger pointing, and that we know the bill before us will be signed by the president. McConnell filed a cloture motion because he knows the president will sign the bill. He thinks the Democrats are making a mistake by not agreeing to limit debate and pass the SSCI version of S.2248.

09:50: Senator Reid notes that Senator Rockefeller will not support cloture on his own bill, on Monday. Ergo, says Reid, Senator Rockefeller feels additional amendment [Me: or at least debate] needs to occur. Senators Rockefeller, Salazar, both Nelsons and Carper signed Reid's competing cloture motion, which reinforces Reid's contention that Rockefeller (and likely the others) object to closing off debate and amendment on the SSCI bill, and will vote against McConnell's cloture motion.

09:53: Here's Senator Bond - maybe a surprise in the form of permitting amendments to come forward, or maybe a recapitulation of justification for denying further amendment. Starting out, no surprise, just another attempt to justify snooping without independent oversight; couched as counterinsurgency methods. Well, hey, lets use counterinsurgency tactics right here at home, we're at war, donchaknow.

10:35: Senator Bond took an hour to say the same thing - the president and DNI Director McConnell have asked for, and President Bush will sign this bill, so we should pass what they asked for. He says the passing of the Protect America Act was a good model for legislative process, bipartisan agreement.

He also offers taking up amendments with 60 vote thresholds. Hey, that's the natural process for contentious amendments anyway, if there isn't objection to taking up the contentious amendment in the first place. IOW, he holds the keys to his own trap, without getting any further agreement.

10:43: Senator Chambliss commends the administration for drafting this legislation for itself, working through Senators Bond and Rockefeller. He reiterates the importance of amnesty/immunity, expressed by DNI McConnell. There is a concern that a court will reject the assertion of state secret; and that any discussion of past snooping practices (i.e., the extent of snooping without a warrant) risks disclosing procedures and methods.

The Protect America Act is touted as status quo. In a way it is. The snooping went on before the PAA was passed. The change is merely Congressional endorsement of warrantless surveillance. Short speech, Senator Chambliss left the floor at 10:49.

10:54: Senator Dodd - but not on FISA, on the economic stimulus proposals, and in particular that they come short of dealing with a housing foreclosure crisis.

11:00: Senator Dodd speaks on FISA. His remarks from yesterday are recapitulated in this press release. Today he notes that senators aren't necessarily entitled to having their ideas adopted, but they are entitled to having their ideas heard and voted on.


The AP reports, "Senate Pressured to OK Stimulus Deal," wherein Senator Kennedy intends to add unemployment extension, heating assistance, and boost food stamp allocations to the House-prepared economic stimulus package. More details in the article. This could come down to a veto too, if Democrats in the Senate have their way over the Democratic leadership in the House.

Carter-Bush tax rebates - David Kopel (Volokh Consp.)

Here's how to deal with a recession: A federal government which is already spending more than its income should borrow even more money, so as to give lots of people a tax rebate. This is the bipartisan plan of President Bush and Congress. They are taking a leaf from the presidency of Jimmy Carter.


H/T HowAppealing, Judge Demands a Report on Destroyed C.I.A. Tapes. Judge Roberts's evidence preservation order is (obviously) separate from Judge Kennedy's evidence preservation order. Maybe tape-gate isn't as dead as I said two weeks ago, when Judge Kennedy provided the Department of Justice with a useful construction of his evidence preservation order.


Senator Cornyn talked about good faith negotiation and compromise in the Senate, and the need to obtain 60 votes in order to implement legislation. He comments briefly on some suggestions Senator Alexander made to get past the impasses in passing FISA. He seems to be advocating amendment and debate, but such sentiments aren't useful or surprising in the abstract. Back into quorum call.

12:04: Senator Bond asked the Senate to recess, subject to the call of the chair. And it did. Weekend! Except for the formalities of closing and dealing with whatever sundry legislation may have accumulated. The Senate needs to be open until 1:00 p.m. to permit the filing of amendments permitted under pre-cloture practice.

12:09: Senator Whitehouse attempts to call up S.Amdt.3905, and was met with objection. He asks that Senator Cornyn advise him when the tone of good faith negotiation will begin, because at this point, despite Senator Cornyn's expression that the Republicans are committed to a tone of good faith negotiation, he's not feeling it in the context of the FISA bill.

S.Amdt.3905 is Specter/Whitehouse's proposal to substitute the US for telecoms in current and future litigation relating to allegation of privacy violations occurring from September 11, 2001 to January 17, 2007. This proposal won't obtain a simple majority pass -- which makes objection to taking it up seem spiteful, or at least unreasonable.

He couches the immunity as taking away the rights of people to have their cases hear by courts. None of the senators has touched on the effect that "law reversal" has on the reputation of Congress and the very legitimacy of the law itself. If laws are to be reversed, then why should they be obeyed?

12:27: Senator Bond attempts to patch hard feelings by expressing appreciation for Senator Whitehouse's contributions, and agreement with a need to balance privacy with security. He says further that he will, at an appropriate time, agree to debate and vote on this measure. But he wants a 60 vote margin for passage before he will agree to taking up any contentious amendment. See above, this is a bogus complaint / requirement. Sixty votes can be forced by objecting to voting on the amendment, AFTER the amendment is brought up for debate.

12:44: Senator Whitehouse rejects the fig leaf, because the simple courtesy of debating and voting on S.Amdt.3905 may be denied through the procedural mechanism of "non-germane" as applied post-cloture. He asks wehther or not S.Amdt.3905 will be given a vote. Senator Bond hints that this depends on obtaining agreement to apply a 60 vote threshold, but does not say one way or the other if the "non-germane" aspect will be played against the amendment.

12:48: Senator Dorgan, first on FISA, then on the economy. On FISA, he shows the testimony of an AT&T employee relating to a vacuum-cleaner (get it all) system where AT&T gives 100% of it's traffic through switches in San Francisco to the government. He's basically adopting the position that the administration should be accountable for the extent of surveillance it conducts.

13:23: Senator Casey, talking about the economy. "We're in a recession," and he proposes a government response.

13:50: Senator Klobuchar, appears to be closing the Senate for the weekend.
S.Res.426 - Congratulating a women's volleyball team
S.Res.427 - Congratulating UC/Berkeley water polo team
S.Res.428 - Congratulating USC women's soccer team
S.2557 - extend PAA until July 1, 2009, read a first time.
Senators have until 4:00 p.m. Monday to file second degree amendments to the Bond/Rockefeller substitute amendment.

13:54: Adjourned until 2:00 p.m. Monday. Morning business until 3:00 p.m. Then resume consideration of S.2248, with time equally divided, with the last 20 minutes for McConnell and Reid. Cloture vote on Reid 30 day extension amendment to take place if and after cloture is rejected on the Bond/Rockefeller amendment.

Notice that S.2557 extension? Until July two-thousand-nine? It's not a typo, that's the extension recited in that altrernative. Following normal procedure, it won't be on the calendar on Monday. At any rate, it comes off as putting the retroactive immunity issue in sharp view. Would president Bush veto this? He didn't veto the PAA when it landed on his desk.


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