FISA Update

Apparently, Reid has brokered a Unanimous Consent agreement that everyone, from Feingold and Dodd to Jeff "Mutual Defense" Sessions, have bought off on.

cboldt’s description is, not surprisingly, the best description of what we’re looking at. What the UC sets up is the following:

  • Four uncontroversial amendments that will pass with the UC. These cover getting the FISC rulings for the past five years, emphasizing prohibitions on domestic targeting, and eliminating a 7-day deadline.
  • Two Bond amendments that will receive very little debate (20 minutes) and will pass–and I do believe they will pass–with a 50 vote margin. One of these permits wiretapping those proliferating in WMDs without a warrant. From CQ:

One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction. Its adoption would require a simple majority vote.

  • Three Feingold amendments that shouldn’t be controversial–basically two just raising the bar on whether nor not the government is really after foreign intelligence or not, and another allowing FISC to require the government to stop wiretapping if their application sucks (though via a Bond amendment, they still get to tap for 90 days). I assume they’re accorded a 50 vote margin because the Republicans don’t find them controversial.
  • Two of the three immunity provisions–both the one striking immunity altogether, and the one substituting the government for the telecoms. I assume they’ve been subject to a 50 vote margin because the Republicans know they won’t win 50 votes. In other words, our chances of using the courts to learn what Bush did will almost certainly lose.
  • One Feingold/Whitehouse amendment on sequestration–probably a better guarantee on minimization than is in the bill. I’m guessing the Republicans have wagered this won’t get the votes to pass, since they’ve agreed to a 50 vote margin.
  • Two bills which will almost certainly gain majority support, but may not get the 60 votes that will be required to pass them. These are Whitehouse’s amendment requiring the FISC to determine whether the government is meeting the minimization procedures they say they’re meeting, and DiFi’s amendment making FISA the exclusive means of foreign surveillance. It appears that the Republicans, recognizing that these should be uncontroversial, but are probably poison pills that will draw a Bush veto, just raised the bar with these to avoid having them pass and having Bush veto the whole mess.
  • Two more amendments that probably fall in the same category: Cardin’s amendment making the sunset on this 4 years, and DiFi’s amendment allowing FISC to review the AG’s declaration that the telecoms acted in good faith before they get their immunity. These may not be poison pills, like exclusivity and minimization, but they may well get majority, but not super-majority, support.

So what should we do? IMO, there are three votes that we may be able to affect in the limited time we’ve got:

Get the votes for exclusivity
While it seems innocuous, this amendment is fundamentally a fight for basic separation of powers. If there are any real limits put on wiretapping, Bush will be inclined to go his own route, declare that under Article II he can do whatever he wants, and declare his ability to wiretap outside of FISA. This amendment basically says, "George Bush, this is the law, and you have to follow it." Many Republicans see this amendment as an assault on their little unitary executive theory. So it needs to be a priority.

The amendment already has three Republican co-sponsors (Hagel, Snowe, and Specter), plus Jello Jay. We need to keep the Dem turncoats (Ben Nelson, Mary Landrieu, Mark Pryor, in particular), get Lieberman, and get several more Republicans to make sure this passes. Some Republicans to focus on are Sununu, Voinovich, Smith, Coleman, Dole, and Collins.

Pressure for minimization
I’m not sure yet what the 50-vote sequestration amendment is, but Whitehouse’s minimization amendment very simply gives a court the ability to make sure the government does what they say they’re doing. This is the amendment that will prevent them from saving your data until such time as they decide that they want to use it–and the amendment that will prevent them from spying on journalists because they speak to people associated with terrorism. It is the amendment that would do the most to prevent the government from abusing its ability to wiretap going forward.

You’d want to call the same people as you would for the DiFi exclusivity amendment, as well as anyone with a libertarian streak. Republicans always support minimization in theory (because it’s the only thing reining big government), we need to press them to do it in fact.

Lobby for immunity
I am absolutely pessimistic that we’ll be able to reject immunity outright. We’re almost certainly at least 5 votes short of doing that, and probably about 5 votes short of passing DiFi’s much more conservative FISC option. But if we do our job well enough on immunity proper, than we might generate more votes in favor of DiFi’s amendment, and we might pull votes off the vote for the overall bill. 

Plus, we need to make this a costly vote for the authoritarians. This is about whether the rule of law takes precedence over covering up for Dick Cheney. That line might be useful in defeating people like John McCain and Norm Coleman come November.

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34 replies
  1. phred says:

    So I take it then that the Dems did not manage to include a poison pill amendment that has any hope of passing that would force Bush to veto?

    • emptywheel says:

      Not clear. I actually think exclusivity might be a poison pill, and it may well pass. Minimization almost surely is, because if there’s real minimization the govt won’t be able to do whta it wants to do. So we have the potential of passing one. But it’ll be a real fight.

  2. phred says:

    One other question, I believe this is scheduled for Monday. There is no way Clinton and Obama will be around for a vote the day before Super Tuesday. Is Reid stacking the deck against us (again)? Or do you think he’s done a head count and decided their presence won’t matter?

  3. TheraP says:

    And a year to go before – hopefully – we can get this nonsense reversed and give ourselves back better privacy rights.

  4. ApacheTrout says:

    Regarding the Bond amendment, I have several questions:

    1) Does this amendment define WMD? Are we talking in the classical sense, such as nuclear, biological, chemical, or radiation? Or is this expansive, such as to include financial destruction caused by a takedown of power lines, internet, or other infrastructure?

    2) Who decides if an individual is involved in the proliferation of WMD? Must the JD present evidence to FISA? Who evaluates the JD’s claim? I see the possibility that the JD/NSA/CIA prepares a national security letter that claims a person is WMD proliferation suspect without external review. So are we carving out a minimization exception?

    3) How would evidence collected without warrant be used? Could it be used to support a declaration of enemy combatant status? Would evidence be required to be submitted to a defendant in a discovery motion?

    4) If an application sucks, is the 90-day extension a one-time only deal? Or can the government come back with another application on day 89 and request continued warrantless wiretapping while the application is reviewed? If the second application is rejected, would the warrantless wiretapping cease immediately?

    • cboldt says:

      Does this amendment define WMD?

      Yeah. You won’t like the definitions either. And your other questions pertain not just to the new classes of target (WMD possessor or proliferator), they pertain to ALL acquisition of information by snooping.

      “(p) `Weapon of mass destruction’ means–

      “(1) any destructive device (as such term is defined in section 921 of title 18, United States Code) that is intended or has the capability to cause death or serious bodily injury to a significant number of people;

      “(2) any weapon that is designed or intended to cause death or serious bodily injury through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;

      “(3) any weapon involving a biological agent, toxin, or vector (as such terms are defined in section 178 of title 18, United States Code); or

      “(4) any weapon that is designed to release radiation or radioactivity at a level dangerous to human life.”.

      The violation is to “engages in the international proliferation of weapons of mass destruction, or activities in preparation therefor”

  5. MarkD says:

    I may tick off my fellow Progressives here, but I have a suggested solution to this mess. (I will preface, however, by stating I think the telecoms should get sued to high heaven. I just don’t think it will ever be allowed to happen.)

    How’s about we grant these jackasses immunity, but in exchange, we include in the law that Net Neutrality must remain until, say, 2058?

    Don’t get me wrong — I’d love to see Reid actually support the rule of law with his fellow Dems. I’d love to see the lawbreaking exposed. I’d love for this to lead to Cheney and Bush’s criminal trials.

    But the GOP won’t buy into the bill if it has immunity, and Bush will veto it. That’s just reality.

    So, IMHO, this may be a good compromise — we may as well gain something in the process of getting screwed.

    Anyone think this is a good idea, or am I just nuts? [Well, I probably am, but I mean in reference to this issue only. ]

    • ApacheTrout says:

      MarkD – I think it would be a serious mistake to legitimize criminal behavior in exchange for advancing other sound legislation. I can see why you’d link two telecom related issues, but it would be a serious mistake. Compromise on legislation to achieve a goal should never include legalizing past criminal acts.

    • rosalind says:

      re. net neutrality: my friend started a ringtone business. off customer complaints she found out verizon has installed filters that send her customers to the back of the queue – it takes hours for the ringtones & text messages to come through, there’s a high failure rate, and a $10 charge for each “non verizon partnered” ringtone download.

      verizon gets a 50% cut on its partnered ringtones, but nothing from the 3rd party companies.

      anyone know if it’s legal to filter traffic like this?

    • JohnJ says:

      I don’t know about trading anything for it, but I agree on the “Net Neutrality” being vitally important. Lack of these rules WILL lead to the death of the ‘net as we know it (the way we are using it right now).

      As soon as the Telcoms start the precedent of censorship, it WILL become a free-for-all. If anyone remembers what AOL was doing when the net first got started, you will understand. Since we are already starting to see an incest relationship between the Big Dick types and telcoms, it will be nothing to throw in Authoritarian rules (a la China). (”You want that domestic spying contract? Then block that DFH EmptyWheel. She called me darth!”)

      The end result will be small exclusive “networks” of approved and paid for sites and functions strictly controlled by your provider. We will be only able to see stuff from companies that pay for access, but we will be charged rent for using the infrastructure we bought for the telcoms. It’s kinda’ like loaning your car to a friend, then having him charge you rent to use it.

  6. cboldt says:

    Get the votes for exclusivity

    That one is ripe for a signing statement, that it’ll be interpreted consistently with Article II powers, etc.

    • Hugh says:

      Get the votes for exclusivity

      That one is ripe for a signing statement, that it’ll be interpreted consistently with Article II powers, etc.

      That was my thought as well and makes me wonder how much of this is, in fact, kabuki. Immunity will give the Administration what it really wants. Once that is done it is done. As for the rest, Bush will ignore it or do a signing statement giving him the power to reject anything he doesn’t like.

        • cboldt says:

          thanks again for your analysis and tracking.

          My pleasure. I do it first for me, and while it’s a little more work to surround it with terse prose and make it presentable for publication, the effort helps me to understand the source material.

          I’m a big fan of referring to the source material. It’s not rocket science, just tough slogging.

  7. cboldt says:

    18 USC 921 – Destructive device

    (4) The term “destructive device” means–
    (A) any explosive, incendiary, or poison gas–
    (i) bomb,
    (ii) grenade,
    (iii) rocket having a propellant charge of more than four ounces,
    (iv) missile having an explosive or incendiary charge of more than one-quarter ounce,
    (v) mine, or
    (vi) device similar to any of the devices described in the preceding clauses;

    Hand grenades, pipe bombs and suicide vests are WMDs under FISA. So are rockets having propellant charges of more than four ounces.

    I don’t know if M-80’s have more than a quarter ounce of charge. Plus, there is a requirement that the device be capable of causing death or serious injury to a significant number of people. I don’t know what “a significant number” means. Three? Ten?

    • bmaz says:

      I don’t know if M-80’s have more than a quarter ounce of charge

      Heh, well, as a kid, they certainly did when I was done repacking them… And they were certainly capable of causing serious physical injury; my friend Frankie Raleigh about blew his arm off once…

      That one is ripe for a signing statement, that it’ll be interpreted consistently with Article II powers, etc.

      Ah, I see Hugh @28 beat me to the punch here. I am not sold on the thought, but I keep having this nagging thought, like Hugh, that they really don’t give a shit about the rest; they will just ignore or pixie sidestep it like they always have, that the immunity is the one, and maybe at the root, only, thing they care about.

  8. cboldt says:

    I’m not sure yet what the 50-vote sequestration amendment is,

    Booman described it as a prohibition of use of evidence obtained, if the acquisition is NOT per the limits described in FISA.

  9. cboldt says:

    when I saw that you had updated with links

    Yeah. I went through that last night, just to skim the amendment language but without cross-referencing it back to the base text.

    The bill is pretty long, and I haven’t gone through it with care. My point of reference is “degree of improvement over the PAA,” but as with any complex legislation, there are multiple angles that could be exploited by a despotic government, or a prosecutor who is seeking trophy prosecutions.

  10. klynn says:

    In other words, our chances of using the courts to learn what Bush did will almost certainly lose.

    Any move that prevents using the courts is giving into a breakdown of the balance of Powers…

    Get the votes for exclusivity

    That one is ripe for a signing statement, that it’ll be interpreted consistently with Article II powers, etc.

    Please tell me exclusivity MAY give us some of that balance back? Because I am concerned it will just appear to…

    • emptywheel says:

      Aside from continually changing his rationalization, Bush rationalized his illegal program by saying he can do what he can’t. He has used every oppty to claim he can do what he wants unless it says, “This is the law now follow it.” But with this in there, it would make it a lot harder for a Court to side with BUsh.

      • cboldt says:

        But with this in there, it would make it a lot harder for a Court to side with BUsh.

        It makes no change in the foundational argument that line draws between Article II and Title III. And it also makes no change to naked assertions of “Is too within Article II.”

      • klynn says:

        Thanks EW, I’ll add that into my letter to my Senators.

        cboldt,

        Thanks for the “slugging” on all of this! (And for making my day by assuring me SC and EB are, well, real in snarkdom! I’m glad you can keep your humor through all of this…

  11. cboldt says:

    Please tell me exclusivity MAY give us some of that balance back?

    Santa Claus and the Easter Bunny are real.

  12. ImaPT says:

    One by the vice-chairman of the Intelligence panel, Christopher S. Bond, R-Mo., would change definitions in the law to allow surveillance without a warrant in cases that involve the proliferation of weapons of mass destruction.

    Too bad we can’t surveill the Administration for proliferating Weapons of Mass Deception…

  13. TheRealityBasedDave says:

    Plus, we need to make this a costly vote for the authoritarians. This is about whether the rule of law takes precedence over covering up for Dick Cheney. That line might be useful in defeating people like John McCain and Norm Coleman come November.

    Which way Normie votes won’t make a difference in his upcoming election. The voters will not actually look into his voting record. They will fall back to “everyone does it, they’re both guilty” reasoning whenever they see a commercial about Normie’s record.
    What I know will make a difference is to tie Normie with Bush. Every time any democrat talks about the upcoming election, they should say Coleman & Bush in the same sentence. EG: “Just like president Bush, Norm Coleman does…” This would need to be done consistently. Every media ad. Everytime. That will eventually land in the voter’s sub-concious mind. When they think Coleman, Bush will be lurking in the background. Hell, look how the Bushies used it to tie Saddam to 9/11. They said stuff along the lines of “Saddam harbored terrorists, & the people who did 9/11 were terrorists.”
    A mayor of StPaul was defeated in a re-election bid by one picture. He publicly supported Bush & his war in Iraq. Right before the election, his opponent sent a flyer with a picture of the mayor smiling & shaking hands with Bush. That’s all it took. He was the first DFL mayor defeated in a re-election bid. First. Ever.

  14. jerikoll says:

    It is business as usual. Republicans holding their ground, Democrats backing off.

    Was there a reason to expect different?

  15. Neil says:

    Two other related points: Marcy Wheeler noted that Dick Cheney appeared on the Rush Limbaugh Show yesterday and claimed that Democrats were opposed to telecom immunity because they’re beholden to “trial lawyers.” This has become one of the most common — and one of the most transparently dishonest — talking points of amnesty proponents.

    Greenwald

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