FISA Liveblog And Trash Talk Thread Monday 2/11/08

RevDeb and Selise ask for a forum for discussion of the FISA debate currently on CSPAN-2; who am I to say no? Discuss away my fine friendlies…….

121 replies
  1. selise says:

    bmaz – you rock, thank you!

    feingold just finished his floor speech. dodd up now.

    dodd: this is not a partisan issue. this is about the rule of law and the constitution.

  2. ApacheTrout says:

    Kinda an odd place for Leahy to announce his support of Dodd’s filibuster, but here you go:

    Tuesday, February 12 is a critical day in our fight to stand up for American values and preserve our freedoms while protecting our national security. The Senate is voting on amendments to FISA, the Foreign Intelligence Surveillance Act, the law governing the use of wiretaps and other means to conduct surveillance of foreign threats.

    Unfortunately, the new FISA bill we’ll be voting on still has many problems. I will do everything in my power — including joining my colleague Chris Dodd in a filibuster against this legislation — to fix it.

    Is this because Dodd’s filibuster is supposedly been shortened to a four-hour event?

      • ApacheTrout says:

        I’ve asked Leahy’s office to filibuster this bill if it contains retroactive immunity. He states that he’s against it, but until now, he has been unwilling to support Dodd’s filibuster. I also asked if he’s getting any feedback in support of retroactive immunity, and the answer has been no. So has something fundamentally changed here, or is this a case of bluff and bluster, but no bite?

    • cboldt says:

      Is this because Dodd’s filibuster is supposedly been shortened to a four-hour event?

      Dodd’s four hours post-cloture is a deviation from the usual post-cloture rule, which limits a single senator to a single hour of debate.

      His debate just concluded was on clock time that was allocated to an amendment.

      I’m sure there will be some passionate speeches on the subject, but the outcome of the vote doesn’t hang in the balance.

      I do suppose some individual Senators might be persuaded to shift, but as a group, they’ll insure this passes. Their first allegiance is selfish, the second is to the Senate as a club. Whatever cash and bones they reallocate among the people is designed to get reelected.

  3. Leen says:

    Thanks folks great to read your insights (not able to access right now). Glad to hear about Leahy

    Bmaz would take what you refer to as your “pea brain” any day. Thanks for all you do!

  4. JimWhite says:

    Here is Glenn’s response to my glee over Leahy’s announcement of joining the filibuster:

    I have some more clarity on this now. Under the UC Agreement, 60 votes will be needed to invoke cloture and 60 votes will be needed for final passage of the bill.

    Thus, there won’t be a real filibuster on the floor to stop the bill (as Dodd promised to lead). Instead, when Leahy says that he’ll support Dodd’s filibuster, what he means is that he’ll vote against cloture. As Pow Wow correctly points out, to defeat the bill, it will only take a total of 41 Senators doing the same — but they’re not going to get that. My guess is they’ll get somewhere in the low 30s.

  5. RevDeb says:

    Dodd quoting from “A Man for All Seasons” again. Love it.

    William Roper: So, now you give the Devil the benefit of law!
    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
    William Roper: Yes, I’d cut down every law in England to do that!
    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

  6. ticktock says:

    Gotta sign off… will be listening to this heartbreak on the teevee…

    Aside from the religious aspect…

    Bless you Dodd and Feingold….wish you both the best….

    Victory in spite of these insurmountable odds….

      • bobschacht says:

        “Have you called Inouye, Bob? I asked him to join Akaka on the vote.”

        I’ve been sending him regular emails. I’ve done this because I not only want him to oppose immunity, but also basket warrants, eviscerating the FISC, etc., and I’m afraid that if I call up, the whole call will just be logged as one tick mark “against”, without any of the detail.

        Bob in HI

  7. ApacheTrout says:

    legality should be determined by a court, not some member of the executive branch. Allowing the executive branch to determine legality effectively kills the judicial branch.

  8. ApacheTrout says:

    cooperation when being paid amounts to bribery or selling of services. It’s not cooperation, it’s a contract. I want to know what amount the telecoms were paid to spy on Americans. This must be in writing.

  9. JTMinIA says:

    Could someone explain how there can be a filibuster if there’s a UC controlling debate? (Not sarcastic … I really don’t know.)

  10. JTMinIA says:

    If it’s just a speech and is limited in time, how can it prevent this from being voted on, as scheduled, and sent to the House?

    Or am I misunderstanding what Leahy is saying he will do?

    I mean, is it really going to make one bit of a difference is one of the rational Democrats says he’s against this?

    • selise says:

      i guess it depend on the time allotted. 4 hours? no. 4 months? sure.

      i think we’re in 4 hour territory…. but that doesn’t preclude a surprise, but i think what’s going on is that there is the pretense of a filibuster, but not the actual thing.

  11. JTMinIA says:

    What doesn’t preclude a surprise? The way I understand the UC from last week, there can’t be a surprise. There will be X amount of debate before cloture. Then Dodd gets to rant to an empty room for up to 4 hours, then they vote. It goes to the House by Wed morning.

    I’m not giving up on one of the amendments making majority-of-those-present (although I’d like to know that Clinton and Obama will be there), but I don’t see any way of this being done in the Senate in 48 hours, max.

    • selise says:

      all the amendments, sure… but once cloture has been filed (has it been yet?), there is a two day wait, then a vote on the cloture motion then up to 30hrs of debate before voting.

      so, yeah, i can see how it could be more than 48hours – but on your larger point (that the time is limited)… i agree. but unlike epu, i’m not omniscient… so there’s always the possibility i will be surprised.

  12. JTMinIA says:

    I thought cloture was already filed by Reid when he announced (back on Fri) who was getting how many minutes today and tomorrow. I thoink that it all wraps up late tomorrow or Wed at the latest. That’s why I’m confused by any talk of a real filibuster.

    You know, it’s a tad amusing listening to senators talk about FISC rulings and OLC opinions needing to be public when 99% of the action in the Senate is secret.

  13. wavpeac says:

    I have been going nuts trying to find some good fisa coverage. All other sites seem nomination obsessed. I am so afraid of stuff slipping through while every one is focusing on campaigns.

    I will make my calls. Thanks for the posts on this. Continue.

    • selise says:

      there is a very bright shiney object

      …. and i had to leave, just back now. will go through the comments to see if i missed anything that you-all think needs a youtube clip.

  14. RevDeb says:

    mcJoan has a new post on the great orange satan on FISA here.

    The nub:

    The procedure for tomorrow is that votes on the outstanding amendments will begin at 10:00. After these votes happen, they’ll have the cloture vote. When Leahy and Dodd say they will filibuster, it means that they will vote against the cloture vote on the bill to continue debate. If they are successful in preventing 60 votes for cloture, the debate can continue for as long as 30 hours. If they fail to prevent cloture, Dodd has four hours reserved for him and his colleagues like Leahy to convince enough fellow Dems to vote against final passage.

    • cboldt says:

      f they are successful in preventing 60 votes for cloture, the debate can continue for as long as 30 hours. If they fail to prevent cloture, Dodd has four hours reserved for him and his colleagues like Leahy to convince enough fellow Dems to vote against final passage.

      That’s ass backwards, or at least conflates things.

      If there aren’t 60 votes for cloture, debate is UNLIMITED.

      If there ARE 60 votes for cloture, the rules provide for 30 hours of debate, but the senate entered a UC agreement to cut waive the 30 hours provided by rule down to about 6.

  15. Mary says:

    OT – great Horton piece at his Harper’s blog

    Seems the Bush-Mukasey DOJ has just arrested a Democratic lawyer in Miami (who advised Al Gore in the 2000 recount) for conspiracy for giving a legal opinion that wasn’t correct.

    Anyone hearing a ding ding ding?

    What exactly is Kuehne’s involvement in this “conspiracy”? He was asked by another lawyer to give an opinion: did he think the retainer that was offered by a client could be accepted? He looked at the money and its provenance and gave a positive opinion

    In sum, the prosecutors are saying that by rendering a legal opinion, Kuehne made himself into a part of a conspiracy. So whether his opinion was right or wrong, he was just another cog in a criminal enterprise. They’re arguing that he cannot claim an innocent mistake as to the law as a defense.

    So if we apply the reasoning the Justice Department advances in the Kuehne case, Yoo and Bradbury are engaged in a criminal conspiracy to subvert the law and may be chargeable in connection with the underlying crimes. And indeed, while Michael Mukasey certainly won’t charge these cases, the Attorney General he cited to the Judiciary Committee as his personal model, Robert H. Jackson, absolutely would. In fact, we can cut from the speculative: he did. The case is called United States v. Altstoetter and the defendants in that case include two officials of the Justice Department who gave erroneous advice under international humanitarian law which led to more than a thousand persons being tortured or shot. The sentence? Ten years, less time served. And in fact the lawyers got off lightly–they were released after seven years for good behavior.

    • bmaz says:

      Heh heh; I am sure the irony will be lost on Mukas Minbrain. And duplicity has never been a particular concern for them either. With the right judge though, this is gonna bite them in the butt; they may try to distinguish it, but it is close enough for rock and roll.

    • pdaly says:

      My first thought: they have an ulterior motive and are setting up a poison pill for the Democrats.

      The Bush/Mukasey DoJ hope this will cause Democrats to rail against the criminalization of legal counsel and by extension protect there own YOOs and BRADBURYs.

      My question, how many butt bites does it take to get to the center of the tootsie pop?

    • GulfCoastPirate says:


      Isn’t this exactly what they are doing themselves?

      How do you legal types see all this ending? I just can’t believe this crew is going to do all this and then willingly ride off into the sunset next January. WHy would you go to these lengths to do all this and then turn it over to Hillary or Obama?

  16. cboldt says:

    but once cloture has been filed (has it been yet?), there is a two day wait, then a vote on the cloture motion then up to 30hrs of debate before voting.

    Reid filed the cloture motion on Friday, a few moments after 1:00 p.m.

    Under Rule XXII, the cloture vote would happen Tuesday morning, but it’s been put off to accommodate whatever time is necessary to vote on whichever amendments get roll call votes.

    The old UC agreement limited the time for debate on amendments, but not on final passage. The cloture motion, if it passes will limit the time for debate on final passage. The post-cloture time for debate is, under the rules, 30 hours (extensible if 60 Senators vote to extend it); but UC can change darn near any rule.

    On this bill, a UC agreement provides for under 30 hours of post-cloture debate.

    – on Friday, February 8, and Monday, February 11, 2008, all remaining amendments be debated and all time used.
    – on Tuesday, February 12, 2008, at a time to be determined, the Senate proceed to vote in relation to the amendments in an order specified later, with two minutes of debate prior to each vote …
    – upon disposition of all amendments, the Senate vote on the motion to invoke cloture on S. 2248 [cloture motion filed Friday at 1:00 p.m.]
    – if cloture is invoked on the bill [I think it will be, easily],
    –the Senator from Connecticut (Mr. Dodd) be recognized to speak for up to 4 hours [this is a courtesy time extension, Rule XXII limits an individual senator to one hour of post-cloture debate]
    — the Senator from Wisconsin (Mr. Feingold) for up to 15 minutes; provided further,
    — recognition of the Managers [Rockefeller and Bond] for up to 10 minutes each,
    — the Senator from Vermont (Mr. Leahy) and the Senator from Pennsylvania (Mr. Specter) for 20 minutes each,
    — the Senate then proceed to vote on passage of the bill, as amended, if amended

    The picture takes a radical change, if cloture is NOT invoked on final passage.

    Cloture takes 60 AYE votes. The GOP has at least 47 (McCain out beating the bushes for votes — or resting, Specter may vote out of his normal character), so the DEMs only need to sacrifice 13 of theirs.

    DEMs against SJC bill
    Bayh, Carper, Inouye, Johnson, Landrieu, McCaskill, Mikulski, Nelson (NE), Nelson (FL), Pryor, Rockefeller, Salazar

    DEMs in favor of limiting debate on SSCI bill (strong pro-immunity)
    Landrieu, Lincoln, Nelson (NE), Pryor

    At the other end, add Leahy to this list:
    DEMs against proceeding to S.2248 (strong anti-immunity)
    Boxer, Brown, Cantwell, Cardin, Dodd, Feingold, Harkin, Kerry, Menendez, Wyden

  17. CTuttle says:

    This is bizarre…

    The court has ruled that would be a violation of the fair trial rights of defendants. In Wilkes’ case, Geragos argued that the factors cited by probation officials as reason to increase the sentence were not found to be true by a jury.

    For example, he said there was no jury finding that Cunningham was an elected official. While that seems an obvious fact, Geragos said that without a specific jury finding, it legally can’t be used to increase the sentence. The jury also did not explicitly find there was more then one bribe.

    Other parts of the filing largely repeat Wilkes’ contention at trial, that he bribed no one and was doing nothing unusual for Washington lobbyists. In the papers, Geragos again flatly denied Wilkes bribed anyone and said that the myriad lavish meals, fancy trips and nice gifts “were typical of lobbyists treating members and not out of the norm.”…..ilkes.html

    • cboldt says:

      I would be amazed if Bernie Sanders did not vote no on cloture.

      Me too. I didn’t keep track during debate, of which senators came out strongly. Some, like Nelson (FL) have clearly telegraphed they will vote AYE on cloture (Ah’m against immunity, but we need a bill, even if it has immunity).

      The number of Senators who have spoken up during the debate is pretty small. The same faces keep popping up and making the same arguments, over and over and over. So, for most senators, all one can do is speculate.

      I’ll be surprised if Obama or Clinton votes at all.

      If McCain is in the house, then the vote will be close, and he’s giving cover to some DEM.

      • JTMinIA says:

        As to Clinton and Obama, there’s an outside chance they’ll show up. After all, the primaries tomorrow are all nearby. (Was that planned?)

        • cboldt says:

          As to Clinton and Obama, there’s an outside chance they’ll show up.

          I wouldn’t expect either one to vote AYE on cloture. I just figured Hillary! at least would prefer to avoid creating a vote record in the NAY column.

          If cloture is rejected tomorrow, it will be a significant (newsmaking) event.

          • JTMinIA says:

            Thanks for the clarification of DiFi.

            As to Clinton and Obama, I was more thinking that they might show up to vote on the amendments. I still have this little dream that, maybe, one of the majority-presents will pass. I’m kind of silly that way. But my wife thinks I’m cute.

  18. CarolynU says:

    Sander’s staff told me (last time we all hit the phones) that he is strongly opposed to retroactive immunity.

    • Hmmm says:

      “Everyone’s in crisis because they’re all picking away at their BlackBerrys and nothing’s happening,” Turner said. “It’s almost like cutting the phone cables or a total collapse in telegraph lines a century ago. It just isolates people in a way that’s quite phenomenal.


  19. bmaz says:

    Bush lies, more people die, and still we aren’t winning. From the WaPo:

    President Bush famously doesn’t like long memos. So if retired Marine Gen. James L. Jones hoped to get Bush’s attention with the report he produced on Afghanistan, he was clever enough to be blunt from the start. “Make no mistake,” the report says in its first line. “NATO is not winning in Afghanistan.”

  20. JTMinIA says:

    cbolt (if you’re still around) –

    There was a moment today when DiFi called for the yeas and nays on her own amendment (that requires 60 votes) and no one objected, so it looked like the Chair was about to have the actual vote.

    Did I misread what was happening? If I didn’t, did DiFi majorly screw up, given that the chamber was just about empty since no voting was supposed to happen today?

    • cboldt says:

      There was a moment today when DiFi called for the yeas and nays on her own amendment (that requires 60 votes) and no one objected, so it looked like the Chair was about to have the actual vote.

      No screw-up. She was asking for a roll call vote on her amendment – AFIAK, that request hadn’t been made before. Getting the clerk to set the stage for a roll call vote is different from starting the vote.

      I’m sure DiFi wasn’t intending the vote to start today, and that she’s well aware tomorrow is stacked vote day. He “asking for yeas and nays” really was routine. Should have been followed by “is there a sufficient second?” (2/5th of Senators present).

  21. bmaz says:

    For all you Clemens heads out there, I may have made a faulty assumption as to Hardin having a bead on Andy Petitte. First chink I have seen in Rusty’s armor to date; this would not be fatal, but very bad for Rusty. I can think of alternative reasons that Petitte may not be in the chair on Wednesday, that have a diametrically opposite implication, but if this story is correct, ole Rusty has got a problem.

    • bmaz says:

      Cool! Best news I have had in a while. He was facing a very solid challenger in 2008, a well funded guy by the name of Bob Lord. Don’t know if he feared losing or if there is some darker explanation (possible, there have been rumors of something other than the recent money flap, but I have never heard of anything of any substance on him).

  22. pdaly says:

    Has anyone written to CSPAN-2 to ask them to update their screen crawl to include exactly how SSCI FISA changes will immunize the current occupants in the Whitehouse?

  23. pdaly says:

    If Dodd has to filibuster for 4+ hours in an empty Senate chamber sometime this week, are we the Public allowed to join him?

  24. JimWhite says:

    Harry just said he expects 8 votes tomorrow. They will start right away with no morning business.
    He said he hopes they don’t need another extension of PAA. Interesting to me that he would even mention that.

    • cboldt says:

      He said he hopes they don’t need another extension of PAA. Interesting to me that he would even mention that.

      It’s a giveaway that push come to shove, he’d vote to pass a bill the the GOP wouldn’t block, i.e., he’d vote to pass a bill with immunity.

      Is he just being polite or does he really believe that the House won’t pass the Senate version?

      Either he’s genuinely uncertain himself, as to how the House will handle the bill, or he’s a very good actor. Pieces are in place to have another extension.

      • PetePierce says:

        So basically, we’re into the House Senate conference since tomorrow is purely a ceremonial stacked deck for all practical purposes.

        Do you have thoughts on who will be in the conference or the prospects for at least immunity to be stripped in that conference (probably slim and none)?

        • cboldt says:

          Do you have thoughts on who will be in the conference

          I don’t believe there will be a conference at all. I’ve expressed that point of view for a couple weeks, and really firmed up my speculation after researching the “form” and historical application of conference committee.

          House and Senate differences can be settled by passing amendments back and forth (usually with backchannel communications so the back and forth isn’t done in the dark), but if the House is firm “no immunity,” and the Senate is firm “immunity,” then there is a legislative impasse. A conference doesn’t settle it, unless one body capitulates in conference. Meanwhile, PAA gets extended as necessary.

          My magic 8-ball says “Senate passes immunity, House does too” 50-50 odds on the House making enough noise to embarrass Reid on his scheduling prowess and provoke a second 15 day extension. But even if there is another 15 day extension, of more, the ultimate result is immunity roughly as expressed in the Rockefeller bill.

  25. JTMinIA says:

    Was it important that Reid just said that he hopes the Senate will finish quickly and that the “House will return something quickly” as well? Is he just being polite or does he really believe that the House won’t pass the Senate version?

  26. emptywheel says:

    Hey folks. Just checking in. Nothing too exciting to tell today. But thanks to bmaz for keeping watch on the threads. Am out to dinner than will check in and load up some posts.

  27. TLinGA says:

    OT – Mukasey is being interviewed on Newshour with Jim Lehrer tonight. Its currently being aired in Atlanta.

  28. CarolynU says:

    Specter gets me every time. He sound so damn reasonable. I keep thinking he’s coming over from the dark side. Hoping that his working relationship with Leahy will stir his conscience.

  29. randiego says:

    heya Bmaz – nice thread, although the news isn’t very good.

    It’s February 2008. We’ve had a majority now for more than a year, and we’ve done… what? Anything? man – this stuff is depressing.

    On a more positive note, last week the Surfrider Foundation and a bunch of other Environmental groups managed to convince the California Coastal Commission to reject a new toll road designed to ferry rich people reduce Orange County/San Diego County traffic by building the connector right through the middle of San Onofre Beach State Park and likely ruining a world-famous surf spot (Trestles) in the process.

    They held the hearing last wednesday and 3,000 people showed up for it – 200 people in support (including 100 union workers who were paid to be there), and the rest against the Toll Road. The hearing lasted until 11pm when they held the vote, which was 8-2 against. Quite an accomplishment for something that appeared to be a done deal. Surfers led the charge!

    Link here:

  30. cboldt says:

    Roughing out the clock/calendar – it’ll be tough to get 8 votes done between 10:00 and 12:30 tomorrow. It’s possible, but very tight.

    The cloture vote would happen after the weekly policy luncheon recess. Say starting at 2:30 if no amendment vote is carried over, 20 minutes later for each vote carried over from the morning. Rough time for passing cloture is 3 pm. There are about 6 hours of debate after that, then a vote on final passage.

    Point being that the House won’t have the bill in time to do anything with it on Tuesday, and the Senate vote on final passage may be pushed into Wednesday.

    Reid’s hangdog look may be simple anticipation of being reamed for failure to get the bill to the House in time to avert another extension.

    • JTMinIA says:

      But doesn’t another extension increase the odds of the House standing firm and sending back a version with, for example, no immunity?

  31. CarolynU says:

    Charlie Brown meet football . . . . Lucy.

    I know. But everytime, he seems so sincere. I know he’ll jerk the ball, but I wanna believe, so I close my eyes and run and…

  32. Hmmm says:

    (Sorry for cross-posting)

    I’m kind of surprised we haven’t yet had a nationwide pattern of people spraypainting the word SPY on AT&T-logo’ed vehicles and equipment. Seems a natural.

    I am just observing, not advocating.

Comments are closed.