Saturday, January 26, 2008

FISA - Senate Amendment and Debate Links

S.2248
SSCI Report : 110-209
SJC Report : 110-258
House Proposal of March 11, 2008
H.R.6304 - June 20, 2008

Jan 28 WH Policy Statement on 30 day extension (will veto)
Feb 13 WH Policy Statement on 21 day extension (will veto)
Jun 26 DNI and AG policy statement on H.R.6304 amendments (will veto)

Senate Amendments

Dec 17, 2007: S.Amdts. 3857-59, 62, 63, 66
Jan 23, 2008: S.Amdts. 3901-03, 05
Jan 24, 2008: S.Amdts. 3907-18
Jan 25, 2008: S.Amdts. 3919-50
Jan 28, 2008: S.Amdts. 3951-59
Jan 29, 2008: S.Amdts. 3960, 69-71
Jan 31, 2008: UC Agreement for Debate
Jan 31, 2008: S.Amdt. 3977
Feb 04, 2008: S.Amdt. 3979

Jun 25, 2008: S.Amdts. 5058-59
Jun 26, 2008: S.Amdts. 5060 & 5064
Jul 07, 2008: S.Amdt. 5066

The proposed amendments of January 25, submitted AFTER the Republican's cloture motion to cut-off debate after a limited time, are wide ranging, and come from both sides. The submission of multiple substantive amendments from proponent and opponent alike suggests that all sides agree that further open debate is well warranted.

Debate

Dec 17, 2007: Part I : HOUSE
Jan 23, 2008: Schedule - Part I - Text : HOUSE
Jan 24, 2008: Leaders - Part I - Extension
Jan 25, 2008: Leaders - Parts I & II (Bond) - Part III (Dodd) - Whitehouse - Dorgan
Jan 28, 2008: McConnell - Specter - Part III
Jan 29, 2008: Leaders - Martinez - Cornyn - Snowe - Chambliss - Bond, Salazar - Coburn - Extension of PAA : HOUSE I - HOUSE II
Jan 30, 2008: Leaders - Bond, Burr, Warner - Bond, Sessions - (No) Schedule
Jan 31, 2008: UC Agmt. - modified amendments
Feb 4, 2008: Part I - Part II (commingled with economic stimulus)
Feb 5, 2008: Leaders (commingled with stimulus) - Schedule - Debate Agreement - Part I
Feb 6, 2008: Hatch - Part II
Feb 7, 2008: Order - Part II : HOUSE
Feb 8, 2008: Cloture Motion
Feb 11, 2008: Part I - UC Agmt - Specter -Dodd
Feb 12, 2008: Part I - Final Passage (Includes full text) : HOUSE
Feb 13, 2008: Bush : Leaders - Reed : HOUSE I - HOUSE II - HOUSE III (rejection of 21 day extension)
Feb 14, 2008: Bush a.m. - Bush p.m. : Senate (FISA buried in Indian Health Care) : HOUSE I - GOP Walkout
Feb 15, 2008: WH Press Gaggle
Feb 16, 2008: President Bush Radio Address - Democratic Rebuttal
Feb 21, 2008: Democrats - Hoyer : NOT NEGOTIABLE! say, Senator Bond and President Bush
Feb 23, 2008: President Bush Radio Address - Conyers' Rebuttal
Feb 24, 2008: Speaker Pelosi - WH Rebuttal
Feb 25, 2008: Senate : House : Bush - WH Statement - WH Presser : OpEds - DEM Congress - Hoekstra - Senator McConnell
Feb 26, 2008: WH Presser - WH Background Briefing : Hoekstra/Bond/Smith OpEd
Feb 28, 2008: Part I - Part II : House
Feb 29, 2008: Rejection of 30 day extension (S.2664)
Mar 03, 2008: WH Presser
Mar 04, 2008: NRO
Mar 05, 2008: House I - House II
Mar 06, 2008: House
Mar 08, 2008: McConnell - Kyl - Cornyn - Reid
Mar 11, 2008: House I - House II : Rockefeller
Mar 13, 2008: President Bush - Wh Presser - House I - House Secret Session
Mar 14, 2008: House Passes H.R.3773 - WH Reaction

Mar 21, 2008: Mukasey
Mar 31, 2008: House (Mukasey letter to Reyes)
Apr 08, 2008: Reid-McConnell

Jun 20, 2008: President Bush - House I - House Passed H.R.6304
Jun 23, 2008: Specter
Jun 24, 2008: Boxer/Bond - Schedule - Kyl - Dodd
Jun 25, 2008: Feingold/Leahy/Bond/Feinstein/Chambliss/Sanders/Hatch/Rockefeller - Cloture on Motion to Proceed
Jun 26, 2008: Debate - Bond - UC Agmt - UC Mod
Jul 07, 2008: Specter - Vote Reschedule
Jul 08, 2008: WH Fact Sheet - Cardin - Part I - Part II
Jul 09, 2008: McConnell - Part I - Final Passage - President Bush
Jul 10, 2008: Signed into Law - Presser

Links to entries "here"

Interdependence Month (Senate action of July 7-9)
Groundhog Month (House FISA Action of June 20 - Senate Action of June 23-26)
Federal Budget (includes FISA action through Mar 15)
February 2008 Mishmash (FISA Action of Feb 26 - Mar 1)
H.R. 2082 - Intelligence Authorization (FISA action of Feb 13-23)
FISA and Economic Stimulus (Action of Feb 4-12)
Brewing Another FISA Delay (Action of Jan 28-30)
FISA - Part Deux (Action from January 25)
Action from January 24

FISA Debate of August 2007 - (2005-2007 history)
Search this blog for "FISA" (heavy on unrelated cruft)

Selected Statements

BOND: We cannot have the entire Nation as fortified as the Capitol grounds and the White House grounds. We have a free and open country. Our only hope of being safe is to identify planned terrorist attacks before they occur.

-----

BOND (the day before): And I am not just talking about terrorist threats, I am talking about a provider refusing to give information voluntarily to help find a kidnapped child or help to find those who sexually entrap children on the Internet or proliferation or what have you. Should we be willing to take this risk? I don't think so. [What's the point of a requirement to obtain a warrant? Let's justify warrantless domestic surveillance for crime prevention, not just for terrorism prevention.]

-----

DORGAN: So the more we know, I think the more we will be able to better understand how to do two things at once: protect our country against terrorists, and protect the civil liberties of the American people. Both are important. At least there is one group of people in this political system of ours that believes the first is far more important than the second. They are wrong. They are both important, and both worth standing up for.

-----

BOND: I have reviewed the Attorney General's findings [regarding the legality of the TSP], the Department of Justice findings. I have read the authorizations and the directives [directives to the telecommunications carrier companies]. It is clear to me, and clear to others, most of the others who have reviewed it, they were clearly acting under the color of law.

-----

DORGAN: We are told that the administration, Attorney General Gonzales, and others furnished the telephone companies with some sort of letter, a certification of sorts. We don't know what that letter was, however, because the administration, citing the State Secrets Act, refuses to allow that to be disclosed.

-----

BOND: I think the suits [civil suits empowered by federal privacy statutes] are designed to cripple our intelligence community. There are not going to be significant judgments awarded no matter what they say because anybody who was intercepted would have to come in to court and say they were intercepted and prove harm. I really question whether they can do that.

-----

ROCKEFELLER: As technology changed and America became the hub for international communication, our intelligence agencies were presented with collection opportunities that were never envisioned--never even thought about in 1978. But because of the way that FISA was drafted, they were unable to take advantage of the new opportunities to collect significant intelligence inside the United States against targets located overseas.

After September 11, 2001 [there is evidence of pre-9/11 warrantless snooping], the President chose to deal with the problem unilaterally and created a warrantless surveillance program that relied on, to my mind, questionable legal justification. I think that was a mistake. I believe the President should have sought, and would have received from Congress, the necessary changes to FISA to accommodate the international communications he wished and needed to target.

The public disclosure of the warrantless program ultimately led the President to seek approval from the FISA Court and then to seek additional authority from the Congress, which is where we are. [for a year, the president said he did not need FISA Court approval]

Our first attempt to address this issue was the Protect America Act passed last August. [No. See proposed FISA revisions in the same time frame as the Military Commissions Act, S.3931 and H.R.5825, for example. There are other legislative actions] That legislation [Protect America Act] allowed our intelligence community to undertake the collection needed to monitor terrorist communications, but the PAA, as we shall call it, is flawed legislation that does not achieve the balance between protecting security and preserving our civil liberties, which is so essential. It provided an expanse of new authority to collect intelligence inside the United States, with little court involvement or oversight from the Congress. ...

I believe the legal foundation for this [TSP] program was questionable at best and was part of an overarching legal framework that sought to dramatically alter the balance of power between the branches of power in favor of the executive. But that is a dispute that needs to be settled between the President, the Congress, and the courts [then why take the courts out? And how are violations of individual privacy rights vindicated?].

-----

ROCKEFELLER: I will accordingly support individual amendments to add those recommendations, as modified when necessary, to S. 2248. These include a strengthened exclusivity provision, a 4-year sunset, court review of compliance with minimization procedures, and an inspectors general report on the President's warrantless surveillance program in order to ensure there is a comprehensive historical record of that experience.

-----

SPECTER: The Specter-Whitehouse substitution amendment will place the Government in the shoes of the telephone companies to have the same defenses--no more and no less. For example, the doctrine of governmental immunity would not be available to the Government. There have been those who have criticized the Specter-Whitehouse amendment, who have ignored the very basic proposition that the suits cannot be dismissed because of governmental immunity.

On the other hand, by the same token, the state secrets defense will be available. In the lawsuits that are being prosecuted now against the telephone companies, the government has intervened to assert the state secrets doctrine. In fact, the Government has precluded the telephone companies from saying very much under that doctrine. When the Government is substituted for the telephone companies, the Government will retain the defense of the state secrets doctrine.

-----

BOND: ... if you are abroad, you would not have been targeted unless you had certain reasonable connections with a terrorist activity or a terrorist who would give the Attorney General and the intelligence community the basis for asserting that there was a terrorist content to the phone conversation.

Now, why do they do this? Because they have more communications than they can handle. They have more terrorist communications almost than it is possible to keep up with.

-----

WYDEN: What we are concerned about, and again, steering clear of anything classified, is some of the technical issues with respect to the definition of `facilities,'' which lead us to be concerned that others could be swept in. That is what we still need to resolve.

-----

ALEXANDER: We know there are 47 million Americans who don't have health insurance, and Republican Senators said in our retreat on Wednesday that we are ready to go to work this year to make sure every American is insured.

---===---

From the administration's mid-April 2007 paper that introduced draft legislation on the subject of FISA revision (this this paper is, as far as I have been able to discern, the first time a demand for legislated immunity was suggested or asserted.) Correction: The administration proposed retroactive immunity in late September 2006, as Rep. Cannon presented amendments to H.R.5825 JURIST: Bush administration seeks broader surveillance reach with FISA amendments), here is a description that justifies use of the FISC for certain legal cases, on the grounds that FISC is technically and analytically competent and qualified.

This provision [Section 411 of the administration's FISA proposal of April 2007] requires courts to transfer a case to the FISC if: (1) the case is challenging the legality of a classified communications intelligence activity relating to a foreign threat, or the legality of any such activity is at issue in the case, and (2) the Attorney General files an affidavit under oath that the case should be transferred because further proceedings in the originating court would harm the national security of the United States. By providing for the transfer of such cases to the FISC, section 411 ensures that, if needed, judicial review may proceed before the court most familiar with communications intelligence activities and most practiced in safeguarding the type of national security information involved.

Fast forward 9 months on the question of FISA Court competency, to January 2008. When confronted with a suggested law that has the FISA Court determine "the legality" (or "constitutionality" or whatever is at the bottom of the pending litigation surrounding the TSP), Senator Bond fronts an argument that the FISC is technically and analytically incompetent, and is therefore unqualified.

BOND: Some are suggesting that before civil liability protection is granted, the FISA Court, the Foreign Intelligence Surveillance Court ... must determine that those providers who allegedly assisted the Government with the terrorist surveillance program acted in good faith and pursuant to an objectively reasonable belief that the directives were lawful. ... Remember, the FISC's function is to approve applications for electronic surveillance. It is not set up for nor has established competence in this area.

One can see that Section 408 in the same proposed law creates amnesty for the communication carriers, on policy grounds that good-faith violations of privacy law should not be evaluated in ANY court -- not on grounds that refer to the competency of the FISC or courts in general.

As of July 2006, the administration didn't raise objection to continuing the lawsuits ...

White House agrees to FISC oversight of NSA surveillance program

An administration official talking about details of the proposed legislation also said that the bill [Senator Specter proposed bill] could consolidate all lawsuits challenging the NSA program into one suit, to be heard by the FISC.

---===---

The "Facts Strike Back" on FISA - Senator Bond (Plaintext)
The "Facts Strike Back" on FISA - Senator Bond (PDF)

---===---

Some interesting substantive speculation as to the FISC decisions that probably provoked the call for retroactive immunity for communications carriers. [probably not - the call for retroactive immunity dates back to September 2006, the same time retroactive effect was demanded for the definition of "grave breach" of the Geneva Convention in the context of the Detainee Treatment Act]

Only few saw the key FISA court rulings - The Hill (12/11/07)

Specter said "as far as I know, the administration did not appeal [the adverse ruling from the FISC]." Leahy declined to give details but said he was not aware of an appeal. He added: "If that is the case, the administration probably realized the FISA court was actually right."

Sen. John Cornyn (R-Texas), a White House ally and Judiciary member, had a similar take, albeit from the GOP perspective.

"The White House probably thought they would lose an appeal," Cornyn said. "The FISA court isn't a policymaking body, and the appeals judges probably would have felt bound by the current law. But the way current law was set up, we were losing two-thirds of our communications intercepts [due to the FISA court rulings]."

"If the administration had the opportunity to appeal, it would have run the risk of losing," said Rep. Adam Schiff (D-Calif.), a member of the House judiciary panel as well as an intelligence oversight board on Appropriations. "By keeping this alive, it's a good issue for the White House."

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