CQ TODAY PRINT EDITION
June 23, 2008 – 9:05 p.m.
Surveillance Showdown Promised
By Tim Starks, CQ Staff
Liberal members of the Senate are gearing up to try to block a rewrite of the nation’s electronic surveillance laws from clearing this week, but it appears likely they will lose.
The Senate is on course for at least one and perhaps two key votes over the next few days that will help determine whether President Bush will get a bill he would sign.
Senate Majority Leader Harry Reid , D-Nev., filed cloture Monday on a motion to proceed to the legislation (
The Senate is likely to invoke cloture, and Reid has said he would like to hold a vote on an amendment that would strip a provision of the bill that almost certainly would provide retroactive legal immunity for telecommunications companies accused of aiding the Bush administration’s warrantless surveillance program.
However, there is no agreement yet on how the Senate will proceed after Wednesday’s cloture vote, and two liberal senators don’t intend to make it easy for the legislation to advance.
“We’ll be requiring key procedural votes, and also taking some time on the floor this week, to indicate the problems of this legislation,” Russ Feingold , D-Wis., said Monday of himself and Christopher J. Dodd , D-Conn., speaking at the New America Foundation, a Washington think tank. “We’re not just going to let it quickly pass.”
An amendment that would strip the immunity provision is favored by Barack Obama of Illinois, the presumed Democratic presidential nominee, who drew fire last week for saying he would support the legislation whether it included the immunity provision or not.
“I think what is clear is that the way the program operated broke the law that was existing at the time,” Obama said Monday at a news conference in Jacksonville, Fla. “On the other hand, what I’ve also seen and learned is the degree to which the underlying program itself is, in fact, necessary to help prevent terrorist attacks.”
Last year, under pressure from liberal bloggers and other left-wing critics, the Obama campaign issued a statement indicating he would support a filibuster of any bill that included retroactive immunity for the telecoms.
Despite the support of both Reid and Obama, the immunity-stripping amendment is almost sure to fail. A similar amendment to a previous version of legislation overhauling the Foreign Intelligence Surveillance Act (FISA, PL 95-511) failed by a vote of 31-67 in February.
New Pressure From the Left
MoveOn.org, a liberal activist group, has started a campaign among its members aimed at Obama for reversing his earlier pledge to support a filibuster.
“Can you call Senator Obama today and tell him you’re counting on him to keep his word?” the group asked its members on its Web site. “Ask him to block any compromise that includes immunity for phone companies that helped Bush break the law.”
Surveillance Showdown Promised
However, many Democrats — including House Speaker Nancy Pelosi of California, who was unhappy with the bill but pressed ahead with a June 20 floor vote nonetheless — appear inclined to put the issue behind them far in advance of the upcoming elections. The House passed the bill easily, 293-129, with the support of 105 Democrats.
Reid also appears inclined to dispense with the legislation for good this week by sending Bush a bill he would sign.
Liberals Oppose Other Provisions
In addition to the immunity language, other provisions of the bill are unpopular with liberals as well, such as a provision that would allow warrantless surveillance of foreign targets even if they are communicating with someone in the United States. The warrantless surveillance could begin once the secret FISA court approves procedures for conducting such spying, unless the administration declared “exigent,” or urgent, circumstances.
Mark Agrast, a senior fellow at the Center for American Progress, a liberal think tank, called the bill “a major disappointment.” Democratic supporters of the bill have pointed to numerous improvements over an earlier Senate-passed, White House-backed FISA bill (
“Nevertheless, despite these welcome improvements, the bill fails at the most fundamental level to restore the independent judicial check on executive power that the Bush administration has done so much to undermine,” Agrast said.
It is also unclear whether the immunity-stripping amendment Reid favors is the only one that will be allowed. Pennsylvania’s Arlen Specter , the top Republican on the Senate Judiciary Committee, said he planned to offer an amendment that would require a federal district court to review “whether what has been done with the telephone companies is constitutional.”
Under the bill as currently written, the court would only review whether the telephone companies received assurances that the program was legal and authorized by the president in determining whether the telecommunications providers deserve immunity. According to a Senate Intelligence Committee report, the companies received such assurances.
Immunity supporters argue it is necessary if the government wants future cooperation from the private sector on spying efforts.
Comments
I encourage everyone to read H.R. 6304 as there are some troubling elements: 1. Telecoms get immunity! If a telecom company is being sued for providing assistance to the Government, all they must do is provide a document from the DOJ that certifies everything was legal. That's it. No judicial inquiry, no legal scrutiny, no examination into the rationale by which our Government conducted extra-constitutional domestic surveillance on U.S. citizens. 2. Government can spy on U.S. citizens in "exigent" circumstances without a warrant. I don't remember the 4th Amendment making any mention of "exigent" circumstances. 3. There is a provision directing the Inspectors General of the various agencies spying on Americans to prepare a report about all their activities... yeah right! One of the Inspector Generals is responsible for coordinating the conduct of the reviews and the preparation of the reports. You know what that means... whitewash! Speaker Pelosi has made public statements where she says how proud she is that a provision in the Bill requires FISA to be the exclusive means by which our Government can spy on its own citizens. What she doesn't mention is that -- THIS HAS ALWAYS BEEN THE LAW -- THE BUSH ADMINISTRATION JUST DISREGARDED THE 4th AMENDMENT BECAUSE HE LOATHES CONSTITUTIONAL RESTRAINT!
Chris and Russ, you boys rock!
When a company received a request from the government where the request might be iffy--there aren't warrants, or it obviously has Constitutional / legal issues, there are only two choices about who gets to decide to do it or not. 1. The company's lawyers (at best. Perhaps their IT department) or 2. a Federal Judge If there is an emergency and the company immediately acts, but then comes back to it later to review what's been done, there are only two choices as to who will decide to keep going or if changes are needed (warrants, say) 1. The company's lawyers 2. a Federal Judge The immunity provision means that from here on out the company lawyers, or the company IT department, will be the last line of defense against potentially unconstitutional requests. Even the federal judge in the AT&T case will explicitly not be allowed to rule on the law, but only on whether or not the companies received an Executive permission slip.
Is CQ supposed to be non-partisan, because it seems awfully reich-wing in the adjectives chosen to describe those in opposition to the bill.
This is the administration who went into negoiations with Enron to set US energy policy. and the Democrats are spineless! Why would they support Enron telecom over the people of the United States of America? We have a God given right "according to GW" to sue these bastards for breaking law of the fourth Ammendemnt of these here United States of America! You ain't afraid to sue are you? You ain't peeing in your pants over a lawsuit are you? I want my rights! I want my rights! These telecoms deserve to go down! And these cowards in Congress protecting the Administration once again is absolutely nuts! Cowards over a lawsuit. I would filibuster this bill forever if I was a US Senator. I would kill this bill myself. Why would Barack Obama vote for these law breaking telecoms? Why? You ain't coward Barack are you?
Welcome to the world of realpolitick, Prussian Chancellor Bismarck's term for victory at any cost. In this case, the victory is George W. Bush's thanks to his telecom duopoly supporters (not coincidentally, AT&T nee SBC is Texas-based) and weak-kneed Democratic leadership in the House and "bought" Democratic Senators. Unfortunately, the Constitution cannot lobby for itself, nor does it garner many votes in elections anymore.
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