Thanks to Selise for making this YouTube. 

When introducing his amendment requiring the government to segregate any information known to be from a US person in a separate database, Russ Feingold used the example of John Bolton to demonstrate the need for protections beyond the weak minimization procedures currently in the Intelligence Bill.

…the supporters of the Intelligence Committee bill claim that minimization procedures are enough to protect Americans’ privacy.

In fact, the minimization requirements in the Foreign Intelligence Surveillance Act are quite weak. They permit the widespread dissemination throughout the United States Government of information about US persons if it is deemed foreign intelligence information which again, is very broadly defined. And they permit dissemination of the identities of these US persons if it is, quote, necessary to understand foreign intelligence information or assess its importance, unquote. Also, also a very loose standard.

Now we know, we know, Mr. President, from our experience in the nomination hearing of John Bolton to be United Nations Ambassador how easy it is for government officials to obtain access to those identities.

And when the FBI receives reports referring to a US person according to a recently declassified government document, it will, quote, likely request that person’s identity, unquote, and will likely meet the requirements for obtaining it. There are other minimization requirements in government regulations, the details of which are classified, but we know in any event that those can be changed at any time. Mr. President, minimization is simply inadequate in the context of these broad new authorities.

You’ll recall that the Senate Dems held up John Bolton’s appointment to the UN because the Administration refused to turn over the NSA intercepts for which Bolton requested the identity of the US person recorded on the intercept.

Democrats said they would continue to block Bolton’s nomination until the White House produces records of communications intercepts he sought from the National Security Agency. The White House has refused, citing executive privilege.

Sen. Joseph Biden of Delaware, the ranking Democrat on the Foreign Relations Committee, said the records could clear up allegations that Bolton used them to spy on "rivals in the bureaucracy, both inferior and superior to him."

"While I doubt this, as I’ve said publicly before, we have a duty to be sure that he did not misuse this data," he said.

[snip]

Little has been said publicly about the contents of the intercepts from the NSA, the highly secretive intelligence agency that specializes in electronic eavesdropping.

Biden said Bolton was given the names of 19 individuals or companies whose communications were picked up by U.S. intelligence.

He suggested Bolton might have been seeking the names of Americans whose conversations were intercepted to assist in "intramural fights within the administration."

Bolton has told senators he needed the information for "context" and out of "intellectual curiosity," Biden said.

It’s a pretty good argument, really. We need to protect Americans from John Bolton’s "intellectual curiosity."

I think these Senators are really getting tired trying to teach their Republican colleagues about the rule of law and the importance of all three branches of government.

Thanks to Selise for the YouTube. One highlight:

I know the Bush Administration fears and despises Judicial Oversight. Probably with very good reason.

And check out Whitehouse quoting Scalia starting at 7:55.

There was a sense of a sharp necessity to separate the legislative from the judicial power at the founding of our government. This sense of sharp necessity triumphed among the framers of the new Federal Constitution. And it did so–again quoting the decision–prompted by the crescendo of legislative interference with private judgments of the Court.

Nice touch, Whitehouse. 

Just a quick summary of where things stand. The amendments that Harry Reid believes won’t be close will be voted on tomorrow. It will almost certainly go into Wednesday. If Mitch McConnell has his way, though, he’ll push the FISA vote out until Thursday or Friday to hand it to the House with no time to fix it.

One more point. If I’m not mistaken, Harry Reid was really worried about giving Hillary and Obama the opportunity to get back to vote on the Stimulus Package. But apparently they seem a lot less interested in getting back to vote for our privacy and civil liberties.

Reid is on the floor talking about what votes we’ll have tomorrow:

Immunity
Substitution
Exclusivity

Argh. This means we won’t have 60 there for exclusivity.

Reid and Mitch McConnell had some back and forth on the stimulus package.

Kit Bond:

Thank colleagues for agreeing to a way forward on this bill. Hehehe, it would do no good to pass a good that is good for politics, but does not do what those who protect our country need. With these fixes we’ll have a bill the President will sign.

Shorter Kit: this is very very technical and so we’ve decided to just do away with Congressional review and, while we’re at it, privacy. What Mike McConnell wants, Mike McConnell gets.

Whitehouse:

In this debate about revising FISA and cleaning up the damage done by the President’s warrantless wiretap program, the Administration expends all its rhetorical focus on what we agree on.

On what terms will this Administration spy on Americans?

The privacy of Americans from government surveillance.

Both Chairmen–Leahy and Rockefeller–have given it their blessing.

As former AG and USA, I oversaw wiretaps, and I learned that with any electronic surveillance, information about Americans is intercepted incidentally.

In domestic law enforcement, clear ways to minimize information about Americans. Prospect of judicial review is an important part of protecting Americans. Bond and Rockefeller have already put into the bill that the authority to review the minimization if the target is an American inside the US. But as will often be the case, the target will often be outside the US. An American could just as easily be intercepted in these situations. This protection (review of minimization) should apply when the intercepted It makes no sense to strip a court based on the identity of the target. It may be that if there’s litigation that a court will decide that it is implied. The mere prospect of judicial review has a salutary effect. The opposite is true as well, when executive officials are ensured that a Court is forbidden to police enforcement, then they are more apt to ignore compliance. Both here, where the FISA bill creates an unheard of limit on Court powers, and in the immunity debate, where we intercede to choose winners and losers. Bad precedent for separation of powers. Those of you who are Federalist Society members should be concerned about this absence of separation of powers.

Quotes Scalia emphasizing the importance of separation of powers. [nice touch, Sheldon!]

Schumer:

10, no wait make me modify to 12 minutes? I’ll move it back to 10. Rise to speak about two issues. Something that happened in Arizona yesterday. Blah blah blah blah blah some team named the Giants.

Chuck, I appreciate your support of Whitehouse’s amendment, but can you gloat during morning business?

Chuck finally talking about minimization. Oversight. Ensure we get all the intelligence information we need without abuse or overstepping of bounds. It’s hard to see how anyone could object to oversight after the fact to make sure that people aren’t abusing the privilege.

Jello Jay Rockefeller:

Says they learned from SJC, strongly supporting explicitly stating that the Court can review compliance. "Without the compliance part of it are nice but meaningless."

[Good for Jello Jay Rockefeller, all those emails and phone calls have made some difference]

Kit Bond

[Interesting moment. Bond says Hatch and "Mutual Protection Racket" Sessions want to speak, but they’re not IN DC. Whitehouse asks when they’ll be in, and Bond says I don’t have their flight schedule, and cuts Whitehouse off.]

Damage done by Protect America Act. No one said there was damage done.

Bond blabbing on about how the FISC is not able to assess compliance with minimization procedures. [In spite of the fact that these are all circuit judges who review this kind of stuff every day.]

Shorter Kit: I think Sheldon Whitehouse should be in charge of assessing compliance rather than the Courts.

Feingold

PAA authorized new sweeping intrusions into Americans’ privacy. Feingold/Webb/Tester. This is about whether Americans at home deserve more protection than people overseas.

This bill permits the government to acquire those foreigners’ communications with Americans. There is no requirement that the targets be terrorists, spies, or even agent of foreign power. This allows them to acquire anything pertaining to foreign affairs of the United States. Many law-abiding Americans will be swept up in this new form of surveillance with no judicial oversight.

Brings up one of the declassified (by EFF) letters in which McConnell said PAA would authorize the collection of communications of foreign businesses.

Where govt knows in advance, govt can acquire those communications with an American involving terrorism etc., and anything else with a court order. Govt can continue to collect foreign to foreign. If govt does not know with whom a foreign target is communicating, can acquire. But once the govt recognizes that one end is in the US. It must then segregate the US communication in a separate database. Does something similar with PAA. Can disseminate any of them if it pertains to terrorism. Notify after the fact.

These provisions ensure that we know when Americans’ communications are being collected so we can track the impact on Americans’ privacy. And yes, this is good for national security. We’ve heard the President say, that if there are people in this country communicating with Al Qaeda, we need to know about it. This sets up a means to do so.

This amendment permits wiretapping overseas. If tracking AQ, it can collect all of it. It needs to tag the information, notify FISA after the fact. If the govt is conduct massive dragnet collections, this would provide the proper oversight. It will make sure that these authorities are not abused.

Minimization procedures. Extremely important. But the supporters of Intell committee bill are enough to protect privacy. Minimization requirements are quite weak. Permit widespread dissemination of information about US person and their identities if necessary to understand foreign intelligence. We know from our experience of nomination of John Bolton how easy it is to get the identities of people obtained in intelligence. Minimization is simply inadequate in context of broad new authorities. Amendment balanced and reasonable approach. It gives the govt full access to foreign to foreign without court oversight. Access to foreign to American if terrorist without court order. Gives the administration what it asked for. So when VP says, we need to pass leg that permits wiretapping of foreign to foreign. This amendment totally permits that. This amendment also provides safeguards to make sure Americans’ rights are being protected. Too many Americans are going to have their communications collected. Any Senator who believes Exec Branch should not be granted far reaching authorities without independent oversight, should vote for this bill.

Tester

[Last week, we tried to strategize with Tester to get him to wear his Carhart jacket on the Senate floor. But he’s in a suit now.]

Sets a higher threshold for access to communications for those that involve Americans.

Why is this necessary? Because this Administration set up a warrantless wiretap program that severely infringed on our rights to be free from unwarranted search and seizure. This bill expands on the Administration’s illegal program. As it stands, anytime you communicate overseas, your communication could end up in a govt database.

This is not what Americans expect or deserve.

Foreign Intelligence Surveillance Act is meant for foreign intelligence.

Webb

Got his first security clearance when I was 17. Black security clearances when Secty Navy. Also very sensitive to massive instantaneous flow of data that makes it essential to intercept key transitions. Gives us responsibility to ensure that with this volume that we don’t allow mistakes and abuse. This amendment designed to allow our govt to aggressively fight terrorism but to protect our rights. Will not stop or slow ability of intelligence services to do the job they have to do. Arguments have not focused fully about broad Constitutional issues.

[You’re telling me.]

We also must care just as deeply that our govt surveillance is conducted in accordance with our Constitution.

Watchwords for this amendment: Safety, Security, Fighting Terrorism, Oversight, Proper Checks and Balances

Like to emphasize that our amendment will do what the American people have been demanding. Every American supports the fundamental principle of checks and balances.

For almost seven years, the executive branch’s surveillance program has operated in secrecy, above the law, with no oversight. Only executive and some people from telecom companies have known which Americans were being wiretapped. Congress rejected this idea when it first passed FISA.

[Brings up denial of request to see documents pertaining to the program as it has existed]

If we do not ask the questions, how will we ever know the extent of govt surveillance?

Some argue this will be cumbersome. Not true–it already labels the info it collects.

Time to law aside differences, time to assert oversight activities.

Kit Bond

Quite a few misconceptions and misinterpretations.

[Can we charge him with perjury if he lies?]

A number of members who wish to speak more about it.

[Once again: Hatch and Sessions not here???]

You can’t get a certification to begin process unless reasonable process to be sure person outside the States, do not permit intentional targeting of any person in the US. A significant purpose is to obtain foreign intelligence information. Statement that someone going abroad calling home would be beyond the pale. Clear provision against targeting American without being sure they’re foreign intelligence.

The amendment will have a totally unexpected impact. It’s difficult to explain in unclassified session why this is so unworkable.

[Shorter Bond: I don’t want to admit they’re playing in the servers with all your emails in them.]

[Bond is just being an asshole at this point, claiming an amendment that requires someone to figure out first whether a communication is overseas, when the amendment says you only have to segregate once you realize it is.]

I can’t describe here, in a public setting, how they go about ascertaining what people to target.

[Bond doesn’t want to admit that they data mine, which also has been outlawed by the Senate.]

Or his number 3 man after his last number 3 man was just wiped out.

[HAHAHAHAHAHA!!! Bond just recognized our biweekly capture of the number 3 guy of Al Qaeda.]

[Ut oh, mixing metaphors, Bond, the lockbox is how you stole our Social Security money.]

Cardin:

Cardin to present his sunset provision.

1978 Congress passed the FISA statute. Quoting Teddy from 1978. "The complexity of the problem must not be underestimated. … My objective has been to reach some kind of fair balance…"

On sunset. Retroactive immunity concerns me, not just on how they worked with this administration. What concerns me is the impact it will have on the court’s oversighting the abuses of privacy by the Administration or private companies. We’re saying, we reserve the right to take away the third branch of govt’s right to decide whether someone’s rights have been violated.

[Cardin finally gets around to explaining why 4 years instead of 6]

I think it is in our national interest for the next Administration to look at those opinions that came out of the AG’s office and the White House, to see whether there is not a better way to accomplish surveillance and protection of civil liberties.

Oh Jeebus. Apparently the frigging Super Bowl is more important to TWO Senators than FISA is. Specter is introducing a bill to allow Churches to show NFL games on bigscreen teevee.

Jello Jay Rockefeller:

Supporting Cardin’s amendment. I think it’s important, when you’re doing legislation of this magnitude, when so many members are not informed as they should. It’s not their fault.

This is really important legislation, but there is no one, with the exception of the Administration which has rejected the review. The reason for that is very clear, one wants to make sure one has the right balance. There are a number of new initiatives that will be started in this legislation. None of them are entirely predictable. There are the unintended consequences.

[Unintended, by you, perhaps, but certainly not unforeseen by us…]

Bond:

I have a number of my colleagues who have indicated a desire to speak on it, so I’m only going to speak a few minutes.

When this came to the committee … bipartisan bipartisan bipartisan … the SSCI and Mike McConnell get to make all the decisions.

The enemies, the terrorists who want to do us harm, they do not put a sunset on their activities. To put an artificial time limit on it makes no sense. Every time we explain on the floor, the more our enemies, those who would seek to do us harm, learn about our intelligence collection capabilities.

Cardin:

Let me just kick Bond in the ass respond to Bond’s points. The cooperation we receive from the executive branch is very much enhanced when we know we have to pass a statute. I noticed Bond’s point that the terrorists have no sunset. They also have no legislature. They have no respect for the civil liberties.

I think it is critically important that the next Administration work with this Congress to look at what this Administration did. That’s why I believe the four year sunset is so important. We’re not gonna let the authorities expire. There’s not a person in this body that disagrees with giving the appropriate ools.

Cardin: Hey, did you know the NSA is in my state?

We owe the NSA the type of support that they need.

Feingold:

Part of judiciary bill. Again, this amendment puts no additional limits to target people overseas. To help ensure that the government follows the procedures that are laid out in the bill. The complete lack of any incentive to do what the bill tells it to do. One thing that everyone should agree, the govt should not use these authorities to target the conversations of individuals in the US. Bill requires targeting procedures designed to ensure that only people outside US are targeted. All of this sounds good. Targeting in particular are one of the few safeguards. Remarkably, the intell bill does nothing to ensure that the govt follows them. They’re basically non-binding. If the govt has been using those unlawful procedures while the FISC reviews them, they can keep using the information that it gathers, all the while disseminating information collected under procedures the court has found inadequate. It is simple common sense. If the govt wasn’t allowed to collect this information they govt shouldn’t be allowed to use this information except in emergency. This amendment adopts the same basic idea. If govt collects info using unlawful procedures, govt can only use information from US persons in case of emergency. Govt can still continue to use info collected on foreign persons.

Gives FISC discretion to use info on US person–info collected illegally–as long as govt fixes unlawful procedures. Overseen and applied by FISA court. Bare minimum we could do to ensure govt follows procedures it is required in the first place.

If they don’t want that, then all the requirements are just suggestions, and it would be clear that they do not want to only spy on foreigners.

Bond:

Would impose additional operating burdens.

[Shorter Bond: I’m going to pretend this amendment applies to foreigners when it only applies to US persons, because otherwise I’ll have to admit that we’re willing to do sequestration for individuals but not for huge groups of people–because, you see, we want to data mine data mine data mine, but I’m not allowed to tell you about that. I’m going to filibuster for a bit in the hopes that Feingold doesn’t kick my ass again because it hurt when he did it a while ago. And boy I wish Mutual Protection Racket Sessions were here already, because he’s got an ass of steal and I’d rather he get his ass kicked by Feingold rather than me.]

Jello Jay Rockefeller Jello Jay:

Feingold’s amendment concerns the affects of the Court’s determination that there are deficiencies in the govt’s collection procedure.  

FISC must review procedures for minimization and targeting. Requires that the shortcoming be fixed or the program be terminated. Feingold amendment prevents govt sharing or disseminating info already required under procedure that concerns US persons. There may be some appeal to idea that there are consequences. Looking at the consequences makes it clear that the provisions are impractical. Serious risks that we would lose valuable intelligence. Feingold’s amendment prevents use of all info gathered through new system of intelligence gathering.

[Like Bond, I don’t want to tell you that the problem with Feingold’s amendment is that it does data mining and if we have to throw some out, it’d ruin our little data mining. If the govt collects thousands of targets inappropriately, I’d rather not get rid of those thousands of targets, Feingold thinks, golly, whether it is thousands or just one, if it was unlawful, it was unlawful.]

 This would prohibit the intelligence community from using information just because of minor deficiencies in procedure.

[Note: Jello Jay just noted that he realizes this is leaving a record for the Courts. He is basically saying it is okay for the government to ignore minor "deficiencies" or even major ones.]

Feingold:  

The arguments of Bond and Jello Jay don’t apply here. My amendment only puts limits on info about US person. The govt can always use info about foreign targets. If the govt starts its program before court approval and fails to track what it has collected in the interim. It can do what it says it always does, which is to label it. Result of the arguments is "we’ve set up rules for the govt and the govt doesn’t follow the rules, there’s not incentive. The govt can always use this info." I’m very troubled by the arguments of the Senator from Missouri. It is given an opportunity to fix it, the notion they shouldn’t use this simply allows the govt the ability to spy on Americans with no consequences. 

Jello Jay:

Thousands of targets, all foreign, means hundreds or thousands of pieces of intelligence. Intell doesn’t come as one lump. All that intelligence could be lost under the Feingold amendment if there were only US person information that were involved.

Feingold:

It’s true that these use limits would only apply to US persons.

Stabenow interrupts for the Stimulus Package arguments. I’m going to sign off now and go buy some food. Will pick it up if it gets interesting again. 

The Senate will take up the FISA fight again today at 2:00, now missing not just the three presidential candidates, but possibly others campaigning for their colleagues. Among the many ways last week’s compromise on FISA really hurt our cause, scheduling the vote for the day before Super Tuesday is at the top of the list. [Update: there will not be a FISA related vote today, we’ll have debate. But I still doubt we’re going to hold off the votes until Wednesday, when everyone will be back from Super Tuesday.]

cboldt has a slightly updated post on what the Senate will be voting on here. By far his most important update is this:

The Senate has formally signaled that it will not request a conference with the House, to resolve differences. At this point of the process on the FISA bill, a conference request is premature because the House has yet to weigh in on the Senate’s proposed legislation. While the two bills are different, the formality of disagreement is presently absent. See Riddicks – Conferences and Conference Reports, in particular pp 467-8, which describe the interaction between both chambers.

For those of you hoping we’ll restore some of the protections from the House Bill (sorry, no pun intended) during conference, I take this to mean that we may well never get to conference, and therefore may never get to improve on the Senate bill once the Senate passes it.

So it behooves us to call our Senators and lobby for them to improve this bill now, in the Senate. When you call, I suggest you tell them to:

• Oppose telecom immunity. While it’s unlikely that we’ll get the 51 majority vote to pass Dodd and Feingold’s amendment, pushing hard against immunity may convince them to support one or both of the compromise immunity amendments (I just learned this one requires majority vote of those voting, not 51).
• Support court review of minimization procedures. Right now, the Administration is obligated to tell the FISA Court how they intend to make sure your data and mine isn’t rounded up in un-related searches and then used. But they don’t have to prove to the Court that they’re doing what they say they’ll be doing. Encourage your Senators to support Whitehouse’s amendment giving the FISA Court review of whether the Administration is doing what they say they’re doing. As we know, more often than not, they’re NOT doing what they say. Minimization is one of the things that Republicans consistently say they support, so if your Senator(s) is a Republican, remind him or her that this is really about protecting Americans’ civil liberties and privacy.
• Make FISA the exclusive means for electronic surveillance. The original FISA law made it clear that, if you want to do wiretapping, you’ve got to make sure it complies with FISA. The language to that effect in the bill currently is quite weak; the Republicans don’t want that language because they’re afraid it’ll hurt Mr. Article II’s feelings. We really need to ensure the law states clearly that FISA is the law and George Bush has to follow the law. So support DiFi’s amendment stating that clearly. This amendment needs 60 votes, but it already has three Republican co-sponsors (Hagel, Snowe, and Specter), so it should be doable.

Update: Russ Feingold explains to Newsweek how he thinks this FISA bill will turn out:

What’s the status of your amendments? It’s been suggested that in the consent agreement to allow debate, Republicans are allowing straight majority votes only on amendments they know will fail—including yours.

We’re trying to make a record here, and to show who voted for what. My prediction is this thing will go through; it will be challenged and go through the courts. And eventually a Supreme Court with something like seven Republican-appointed judges will strike down the worst parts of it. This is a long-term battle to protect the rights of the American people.

Sadly, I agree that for many of these votes, we’re just creating a record so, once the law has been overturned in substantial part (as the PATRIOT Act has been, which Feingold also led the fight against), we can see who really fought for our Constitution.

But I disagree with Feingold on one key point. This will almost certainly take more than a year to wind through the Courts. So I hope Feingold is wrong that there will then be seven Republican appointed judges. 

Anyway, here are some reminder phone numbers:

• 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

This article, from the man whose warnings about 9/11 Bush refused to believe, ought to be sent to every Senator.

For this president, fear is an easier political tactic than compromise. With FISA, he is attempting to rattle Congress into hastily expanding his own executive powers at the expense of civil liberties and constitutional protections.

I spent most of my career in government fighting to protect this country in order to defend these very rights. And I know every member of Congress – whether Democrat or Republican – holds public office in the same pursuit.

That is why in 2001, I presented this president with a comprehensive analysis regarding the threat from al-Qaeda. It was obvious to me then – and remains a fateful reality now – that this enemy sought to attack our country. Then, the president ignored the warnings and played down the threats. Ironically, it is the fear from these extremely real threats that the president today uses as a wedge in a vast and partisan political game. This is – and has been – a very reckless way to pursue the very ominous dangers our country faces. And once again, during the current debate over FISA, he continues to place political objectives above the practical steps needed to defeat this threat.

In these still treacherous times, we can’t afford to have a president who leads by manipulating emotions with fear, flaunting the law, or abusing the very inalienable rights endowed to us by the Constitution. Though 9/11 changed the prism through which we view surveillance and intelligence, it did not in any way change the effectiveness of FISA to allow us to track and monitor our enemies. FISA has and still works as the most valuable mechanism for monitoring our enemies.

In order to defeat the violent Islamist extremists who do not believe in human rights, we need not give up the civil liberties, constitutional rights and protections that generations of Americans fought to achieve. We do not need to create Big Brother. With the administration’s attempts to erode FISA’s legal standing as the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil, this is unfortunately the path the president is taking us down.

Click through for the rest–and then send copies to your Senators.

You think maybe Clarke is getting fed up with this false debate?

Home now! More details on my trip over the day. And thanks to bmaz for holding down the fort yesterday (though I will pester him to do his part two).

This is the video Matt Stoller took of Russ Feingold speaking to a bunch of us DFH bloggers yesterday, mostly about FISA. Feingold argued that immunity was just one part of the SSCI version of the FISA bill that sucks: just as importantly, the SSCI has inadequate protection for the privacy of Americans, particularly when they communicate with people in other countries.

Now, Feingold suggested no one had been blogging about these other topics–to which I complained that I had (and McJoan from DailyKos pretty much agreed I won’t shut up about them). Here are some highlights:

Minimization (the process by which the government segregates out US person data and eventually destroys it):

• Showing that McConnell seems to have abandoned the Senate Dem bill in August because it had weak minimization oversight
• Noting that a bunch of wingnut House Republicans at least said they support sound minimization procedures
• Analyzing Whitehouse’s push for a review of whether the Administration conducts the minimization it says it will conduct
• Showing that DNI McConnell based his opposition to real oversight on minimization on EO 12333, rather than FISA, which would subject minimization to Bush’s "Pixie Dust" treatment

Overseas Spying (addressing the fact that through the use of Pixie Dust, Bush appears to have made it legal to spy on Americans overseas)

• Examining Ron Wyden’s amendment to the SSCI bill, adding oversight on spying on Americans overseas
• Analyzing Whitehouse’s explanation of how Bush used "Pixie Dust" to authorize spying on Americans overseas
• Posting Whitehouse’s repeated call for FISA to protect Americans overseas

Mass Collection (the FISA program aims to allow basket warrants, which will provide the legal justification to do data mining)

• Suggesting that the Administration’s intransigence on basket warrants and minimization reveals its plan to use FISA to legalize data mining

Now, I included all these links not just to prove that I’m almost as sharp as Russ Feingold (though I’m admittedly missing a few of his speeches where he made it clear that this fight is about spying on Americans). I did so to illustrate that, on several other key areas, Bush has threatened to veto a bill that fixes the problems with PAA. In fact, Bush has even threatened to veto the bill if it includes DiFi’s exclusivity provision!

That may become useful. I’m pessimistic that we’re going to be able to win on the immunity provision, though I’m looking forward to Dodd’s filibuster of it. Though I do wonder whether we can "win" via other means.

The latest story is that the Senate will consider some of these amendments (hopefully all of them), and some will be allowed to pass with 50 votes. Depending on which amendments get to pass with 50 votes, we may be able to include a poison pill in the bill, one that appears innocuous (like DiFi’s exclusivity provision), but which would make Bush’s real plan on this spying illegal. If that happens, Bush will either be forced to veto the bill, try to "signing statement" his way out of the prohibition on activities he’s doubtless already authorized, or have key parts of his program declared illegal again. Given the stakes on this issue, I think he may well veto the bill.

Which would put us in a much stronger position. Bush has said he wants FISA plus immunity, but if he vetoed it even if it had immunity in it, he’d be forced to admit that he’s asking for much much more than he has publicly admitted. That would allow us to have the debate we should be having right now: how much privacy do Americans give up–indeed, how much privacy have they already given up–in the WOT?

A central thrust of the immunity fight is an attempt to make the Bush Administration admit what they’ve done in the past. But if we manage to include some poison pills in the final bill, we may force them to admit what they’re doing in the present, even while getting a second opportunity to deny Dick Cheney his immunity.

Update: Didn’t see this Glenn Greenwald post before I did this, but Glenn hits all the same points.

Realistically, there are really only two possible ways for all of this to be derailed: (1) the Senate passes one or more pending amendments which is unacceptable to the White House and thus provokes a veto of the bill Congress passes (the most likely candidates: Sen. Feinstein’s amendment declaring (again) that FISA is the "exclusive means" for eavesdropping and/or Sen. Feingold’s amendment compelling the disclosure to Congress of the secret FISA court rulings which the White House claimed prompted the need for changes to FISA in the first place); or,

(2) the House stands firm with the bill it already passed and refuses to provide telecom amnesty and new warrantless eavesdropping powers, even once the Senate does so. At this point, option (1) seems far more likely, as the Blue Dogs can single-handedly fulfill all the President’s demands by voting (along with the Republicans) in favor of the Senate bill.

It has been an exciting and fascinating two days, yesterday and today. It has been the best, and worst, of American democracy in action. The thrill of victory; the agony of a weak defeat, snatched from the strong jaws of victory. Yesterday we were giddy with the knowledge that the Democratic Senate Leadership had actually stood up, not just to the Bush/Cheney/Republican cabal of maximum everything in wiretapping and privacy invasion, but in the name or the Constitution and righteousness. Today, reality came crashing back down to earth for those of us in the reality based community.

Yesterday, the Senate led by Harry Reid and the Democrats fought off cloture and a vote on the contemptible Jello Jay Rockefeller crafted SSCI FISA Update Bill that, in addition to other ills, provided immunity to Dick Cheney, George Bush, other Administration malefactors and, as somewhat of an afterthought, participating telcos. That was a good thing. There were already whispers and scuttlebutt of a "brief extension" of the truly contemptible Protect America Act. As I have argued for some time now, there are inherent problems with such a "routine brief extension".

I repeat what I said yesterday on this “brief extension” nonsense. It is nothing but sheer political posturing that brings us down to the level of the Repuglicans AND weakens our case at the same time. Take a stand for the proper principles, and stand behind them as opposed to injecting harmful BS for the sole sake of cornering your opponent; which is a fine and appropriate tactic, if it doesn’t undercut your core principle in the process. Here, it will weaken the core principle and argument in it’s favor and should NOT be considered; especially since it is not necessary “to protect us” in the least, and blindly saying that it is so necessary is ridiculous.

NO EXTENSION! There is no need whatsoever for an extension, because A) The Administration can order any comprehensive program, or programs, they want prior to the lapse of the PAA and that program(s) will stay in effect for one full year “to protect us”; and B) the original FISA law is reinstated. Furthermore, passage of any extension is a wolf in sheep’s clothing because is equitably removes and/or weakens many arguments and defenses that opponents, like us, to the PAA had from it’s original passage in August 2007. At the time of the original passage of the PAA, most congressmembers voted based upon false and misleading facts provided by the Administration, McConnell and Hayden; voted under a false fear that the country was in jeopardy of an imminent major attack (another direct lie), were not aware of the secret memos produced by OLC behind the Administration program that were legally indefensible, etc. If we now vote to extend the PAA, we not only effectively remove and/or undercut all those germane defenses/explanations, we also give credence to the position that there is some merit and legality to the PAA. There is absolutely no need for an extension and passing one weakens our side’s position. THERE MUST BE NO EXTENSION. (lame grammatical errors in original corrected)

Today we didn’t get what I had feared, we got worse. Thanks to Harry Reid, Nancy Pelosi, Steny Hoyer and the usual cast of nefarious Republican characters, Congress has agreed to a fifteen day extension of the horrendous Protect America Act, thus weakening our defenses and objections to the despicable and fraudulent tactics by the adversary that produced it, and they didn’t even grab a political advantage in the process. The worst of both worlds, so to speak.

Marcy has been in Washington DC doing several things, representing all of us admirably, and is now traveling home. She may, or may not, post tonight, depending on her schedule. I wanted to get this up so that the able bodies indigenous to this blog had a thread to discuss, and work toward remedying, what has transpired. Depending on Marcy’s posting and a couple of personal time factors (in case you haven’t heard, there is a lot going on in Phoenix currently), I will post a more thorough and fact filled sequel. In the meantime, have at it; we need your input and help. Franklin Delano Roosevelt famously said that we "have nothing to fear but fear itself". Today, we once again flinched in the face of falsely injected fear of fear.

UPDATE: Via Jane, Russ Feingold explains one of the other critical core problems in the two proposed FISA Update Bills.

I’m at a schmoozy event at the Senate today–Harry Reid gave an opening speech focusing on the areas where progressive loud mouths have really helped out the Senate.

He spoke for a bit about FISA–repeating what he has said publicly (that if the Republicans won’t accept a PAA extension, then it will expire). But at the very start of his speech he named some of the people who had helped most on the FISA bill. McJoan (from DailyKos) and FDL’s own Christy were the first two people he mentioned.

As Jane reported last night, our presidential candidates have decided to return to DC to exercise their vote, if not to lead.

I’m glad to have them, though I agree with Tim Tagaris that we could sure use their help on Tuesday and Wednesday and Thursday, as well as today.

I’m curious, though, about one thing. On Friday, here’s what Hillary told Matt Stoller about this vote:

Then I spoke with Hillary, and she said she has assured her colleagues she will go back to the Senate if they need her vote.

As was perfectly clear at that point, you don’t need votes to defeat a cloture vote–you just need to make sure your opponent doesn’t get the requisite 60 votes.

So what convinced Hillary to return and cast a vote that, I’m sure, her Republican opponents will find some way to attack (speaking of which, McCain is blowing off the SOTU, presumably to avoid committing one way or another to this vote)? Was it a slew of faxes sent to her campaign office, finally persuading her that missing this vote will be like flip-flopping on an $87 billion Iraq appropriation? Did someone decide that we might have a shot at reaching cloture on the House version of FISA, RESTORE, which should have a cloture vote immediately following the Rockefeller-Bond bill (I doubt that highly–I suspect this cloture vote is Reid’s attempt to prove that RESTORE is no likelier to pass than the Rockefeller-Bond bill [oops, I confused what the cloture vote is on–it’s on the extension of PAA])? Are we at risk of failing to defeat cloture, and Hillary wanted to make sure her vote was registered? Or did Hillary just remember she had a day job?

[Speaking of which, I’m actually in DC hanging around the Senate today, though I doubt they’ll let me vote in the cloture vote, or even see it any more closely than you can on CSPAN. Posting may be either light or heavy–who knows?]