With deadline looming, Senate returns to FISA debate
Nick Juliano
Published: Thursday January 24, 2008

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Update: Cloture vote on FISA update scheduled for Monday

A long-running fight over how much authority the US government has to spy on its citizens and whether phone and internet companies that facilitated warrantless wiretapping should get a free pass in court could reach a turning point Monday.

The Senate began debate on a controversial, long-term update to the Foreign Intelligence Surveillance Act Thursday, just a week before a temporary update expires, but the prospects for blocking a controversial telecom immunity proposal seemed to be dwindling, but not lost completely. A final vote on the bill has been pushed to at least next week.

In an unexpected development late Thursday, Senate Republicans immediately filed for cloture on a FISA update from the Intelligence Committee, which would preclude further amendments to it. Majority Leader Harry Reid then scheduled a cloture vote -- requiring 60 votes to end debate -- for Monday and announced he would support a filibuster of the bill and urged his colleagues to do so as well.

Several bloggers who have been active on this issue, including those at Firedog Lake and DailyKosare urging readers to call their Senators in an effort to prevent the GOP cloture motion.

Just before 2:30 p.m. the chamber decided against moving forward with an immunity-free FISA update, voting 60-34 to table an amendment offered by the Senate Judiciary Committee. Even before the vote, supporters of the Judiciary measure were pessimistic about its chances.

The base bill, from the Senate Intelligence Committee, includes a provision that would grant legal immunity to telecommunications companies who are believed to have given the National Security Agency virtual free reign to monitor their networks as part of its needle-in-a-haystack search for terrorists in the US.

A House-passed FISA update contained no immunity provision, but President Bush reversed a previous decision Thursday and decided to give House members access to documents justifying his warrantless wiretapping program. That decision likely will weaken opposition to the immunity grant, which was based in part on arguments that the administration was refusing to share those documents with the House.

Sen. Jay Rockefeller (D-WV), who chairs the Intelligence Committee, kicked off the debate Thursday with an argument in favor of retroactive immunity for telecoms, which is included in his committee's version of the FISA update. He said the dispute over the president's authority to authorize warrantless wiretaps aimed at Americans was one that needed to remain among the White House, Congress and the courts and said that private companies should not be "caught in the crossfire" of this dispute through the pending lawsuits.

Salon blogger Glenn Greenwald, a vocal critic of the immunity provision, accused Rockefeller of "doing the bidding of Dick Cheney" in pushing for telecom immunity.

Speaking in favor of an immunity-free proposal offered by the Senate Judiciary Committee, Sen. Russ Feingold (D-WI) said that bill would maintain the balance of powers and oversight necessary to protect Americans.

"The government's dissemination and use of information on innocent law abiding Americans will occur without any checks and balances whatsoever" under the Intelligence Committee's proposal, said Feingold, who sits on both committees. "Once again, 'Trust us' will have to do. I believe in this case, as in so many others, 'Trust us,' is not enough."

Sen. Chris Dodd (D-CT) plans to renew his efforts to strip the immunity provision, which would spare telephone and Internet providers the burden of defending themselves against 40 or so pending lawsuits that allege they violated customers' privacy by allowing NSA eavesdropping without first securing a probable cause warrant.

Speaking on the Senate floor before the vote on the Judiciary bill Thursday, Dodd reiterated his objections to provisions of Rockefeller's White House-supported bill, and he said his disapproval was not based on partisan ship.

The Intelligence Commitee version "is entirely too trusting of a bill, not just for this administration. ... Any Democrat trying to do this, I'd speak just as passionately," Dodd said.

Dodd and Feingold plan a separate amendment that would strip the immunity provision, but supporters are doubtful about its chances. Dodd, who dropped out of the Democratic presidential race this month, said granting immunity would be akin to letting a criminal off the hook.

"Imagine, if you will, a judge convicting a bank robber, and then letting him keep the loot that he stole, as long as he promises to never, ever, ever do it again," Dodd said. "That might as well be the bill before us."

The Senate tried to pass a FISA debate in December, but Senate Majority Leader Harry Reid put that effort on hold after Dodd filibustered and senators were unable to reach a compromise on how to proceed.

"We've got to finish this legislation and we have to do it this week," Senate Majority Leader Harry Reid said Thursday as debate opened in the Senate. In August, Congress passed the Protect America Act, a temporary FISA update that fixed loopholes in the law but expires Feb. 1. Reid said President Bush and Senate Republicans blocked his attempts to pass a one-month extension to the PAA.

President Bush, Vice President Dick Cheney and others in the administration have put heavy pressure on Congress to update the FISA bill, calling for it to act before a temporary FISA expansion expires in February.

Whatever emerges from the Senate will need to be reconciled with a FISA update passed by the House last year, which does not include immunity for telecoms. The Center for Democracy and Technology compiled a comparison of the FISA updates proposed by both Senate committees and the House, which is available here (.pdf).

This video is from C-SPAN 2, broadcast January 24, 2008.