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Old 02-04-2008, 11:50 AM
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Default FISA: Debate Starts Today, Retroactive Immunity Vote Tomorrow

Debate on FISA amendments will start this afternoon, with debate to continue tomorrow. There are a number of amendments on the table, and Booman Tribune has descriptions and the number of votes needed to pass:
Subject to Simple Majority/Up or Down Vote
Striking Immunity – 51
This will eliminate telecommunications corporation retroactive immunity (Feingold/Dodd)
Sequestration – 51
Prohibit the use of illegally obtained information. Democrats have an amendment that would create an incentive for the government to adhere to FISA guidelines by limiting the government's use of illegally gathered information on U.S. persons, unless it is determined by the FISA Court that the information indicates a threat of death or serious bodily harm or the government has amended its defective procedures to conform with the law. (Feingold)
Bulk collection – 51
Limit "bulk collections." Democrats have an amendment that would prevent the government from authorizing "bulk collections," such as all communications between the U.S. and the rest of the world. While absurd and of questionable constitutionality, such collections may be permissible under current law. This amendment would limit the opportunity for abuse by requiring the government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest. (Feingold)
Reverse targeting – 51
Require a warrant when targeting U.S. persons. Democrats have an amendment that would prohibit warrantless reverse targeting by requiring a FISA Court order for surveillance of a foreign person where the "significant purpose" of the collection is to target a U.S. person located in the United States. (Feingold)
Substitution – 51
Provide an alternative to blanket immunity for telecommunication companies. Democrats have an amendment that would substitute the government for telecommunication companies being sued for their participation in the warrantless wiretapping program, but only if the company is first determined by the FISA Court to have cooperated with the Bush Administration reasonably and in good faith. Plaintiffs would be entitled to appear before the court as well, and if the court found that the company did not act reasonably and in good faith, the company would remain in litigation and not be substituted. This approach strikes a balance between the "full immunity" approach, which would rob plaintiffs of their day in court, and the "no immunity" approach, which may unfairly punish companies who relied upon the Bush Administration's claims that the warrantless wiretapping program was legal. Moreover, this approach places the primary responsibility for any wrongdoing where it belongs: with the Bush Administration. (Specter-Whitehouse)
Subject to 60 Vote Requirement
Minimization – 60
Meaningful oversight of intelligence activities. Democrats have offered an amendment that would grant the Foreign Intelligence Surveillance Court the discretionary authority to not only approve minimization rules but to review their implementation. The SSCI bill only grants the Court authority to do the former. The minimization compliance review amendment would ensure the meaningfulness of rules approved by the FISA Court to protect Americans whose communications are incidentally picked up by the intelligence community while conducting foreign surveillance by ensuring that those rules are followed. (Whitehouse-Rockefeller-Leahy-Schumer)
Sunset – 60
Ensure the timely review of expanded authorities. Democrats have an amendment that would shorten the sunset of the FISA Amendments bill from six years to four years, ensuring that future Presidents and Congresses' have an opportunity to review the need for and effectiveness of these authorities. (Cardin)
Amendments Accepted As Part Of the Base Bill (No votes will be necessary)
FISA Court docs – accepted as modified
Access to FISA Court documents. Democrats have an amendment that would require that Congress be given timely access to FISA Court pleadings, opinions, and decisions that contain significant interpretations of law, retroactive five years. The SSCI bill mandates congressional access going forward, but does not require access to previous documents. (Feingold)
May be accepted as part of the base bill if not will get a vote (tbd 50 or 60) (Ed. note: again, Congressional Quarterly is reporting that this will require 60 votes).
Exclusivity of FISA. Democrats have an amendment that would reiterate Congress' original intent that FISA be the exclusive means for conducting electronic surveillance. The amendment would reject the President's now discredited argument that the 2002 Authorization for Use of Military Force against al Qaeda and Taliban granted him authority for warrantless wiretapping outside the parameters set forth in FISA and affirmatively state that only an "express statutory authorization" would create an exception to FISA. (Feinstein)
Clearly, progress has already been made. Access to FISA Court documents is a great thing for Congress to have, and hopefully it will help expose the depths of Bush's lawbreaking in the future.
As for the rest of the amendments, it's hard to say which amendments if passed would trigger a Bush veto. However, that should be the goal. The Protect America Act was extended for 15 days only, and if FISA is vetoed by Bush there is a good chance it would simply expire.

Marcy Wheeler is urging pressure for exclusivity (making it clear to Bush that FISA is the only way he can spy on Americans, a (*)(*)(*)(*) you to the unitary executive), minimization (which mandates intelligence gathered on innocent Americans be redacted or deleted entirely), and against retroactive immunity. I would urge readers to contact your Senators and ask for the same things.
The ACLU lays out their recommendations specifically related to immunity as well. They would support the Specter-Whitehouse amendment that substitutes the federal government as a defendant in telecom spying lawsuits only if the amendment stripping retroactive immunity fails. If no retroactive immunity fails, they will also support Feinstein's compromise amendment that would allow the Attorney General to dismiss lawsuits if the AG "certifies that either the company that was sued did not wiretap or that the wiretapping was (i) authorized by the President; (ii) designed to detect or prevent a terrorist attack; and (iii) requested in writing by a head of a department of the intelligence community or his or her deputy."
So, what should you do?
  1. Send a quick note to your Senators telling them to stand for the Constitution and vote against telecom amnesty
  2. Call your Senators and ask them to vote for these amendments: Feingold/Dodd (stripping immunity), Whitehouse-Rockefeller-Leahy-Schumer (minimization), and Feinstein (exclusivity)
  3. Put extra pressure - in the form of calls or faxes - on these Senators, who seem likely to waver and come over to our side on these issues:
    Bayh (202) 224-5623 phone, (202) 228-1377 fax
    Byrd (202) 224-3954 phone, (202) 228-0002 fax
    Carper (202) 224-2441 phone, (202) 228-2190 fax
    Feinstein (202) 224-3841 phone, (202) 228-3954 fax
    Inouye (202) 224-3934 phone, (202) 224-6747 fax
    Johnson (202) 224-5842 phone, (605) 341-2207 fax
    Kohl (202) 224-5653 (202) 224-9787
    Landrieu (202)224-5824 phone, (202) 224-9735 fax
    Lincoln (202) 224-4843 phone, (202) 228-1371 fax
    McCaskill (202) 224-6154 phone, (202) 228-6326 fax
    Mikulski (202) 224-4654 phone, (202) 224-8858 fax
    Nelson (FL) (202) 224-5274 phone, (202) 228-2183 fax
    Nelson (NE) (202) 224-6551 phone, (202) 228-0012 fax
    Pryor (202) 224-2353 phone, (202) 228-0908 fax
    Rockefeller, (202) 224-6472 phone, (202) 224-7665 fax
    Salazar (202) 224-5852 phone, (202) 228-5036 fax
    Stabenow (202) 224-4822 phone, (202) 228-0325 fax
    Chambliss (202) 224-3521 phone, (202) 224-0103 fax
    Coleman (202) 224-5641 phone, (202) 224-1152 fax
    Collins (202) 224-2523 phone, (202) 224-2693 fax
    Dole (202) 224-6342 phone, (202) 224-1100 fax
    Graham (202) 224-5972 phone, (202) 224-3808 fax
    Lieberman (202) 224-4041 phone, (202) 224-9750 fax
    McCain (202) 224-2235 phone, (202) 228-2862 fax
    Smith (202) 224-3753 phone, (202) 228-3997 fax
    Snowe (202) 224-5344 phone, (202) 224-1946 fax
    Sununu (202) 224-2841 phone, (202) 228-4131 fax
    Warner (202) 224-2023 phone, (202) 224-6295 fax
  4. Oh, and put pressure on Obama, Clinton, and Ted Kennedy to be in DC to vote on these important amendments.
So far, the pressure we have put on Senators has stalled FISA passage and made stripping of retroactive immunity a real possibility. If nothing else, Senators have shown willingness to listen to their constituents and waver on their votes with regards to this issue. Your calls, letters, and faxes are important!
Take a moment, pick up the phone, and tell the person you elected how they can best serve you. It's their job to stand up for the Constitution. Make that clear to them today.
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