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Answering The FISA Legislation Muddle

senate.jpgYesterday evening, the Senate Judiciary Committee passed out their version of the FISA Bill, with only Title I included.  Title II, which contained the telecom immunity provision, was left out entirely.  Last night, we were getting a lot of competing reports saying that meant telecom was out entirely.  And then that it wasn’t, that the SJC bill was only a potential amendment to the Intel bill.  And about twenty more permutations all over the map from there.

So I dug around in the Senate Rules — and was on the phone with various staffers of Senate Judiciary members, including a staffer in Sen. Feingold’s office who was very helpful.  The answer is that there are a LOT of potential answers as to where this goes from here.

For starters, this bill was handled in a very unusual way due to the pass through from Intel to Judiciary for additional consideration.  That does not happen very often, so the procedural intricacies involved in this are a bit muddy for everyone, including some of the Parliamentarian types. 

It happened this time due to the importance of the issues involved, and, in my opinion, the fact that the Intel committee completely flubbed the legal issues — taking the Cheney wing of legal analysis as gospel when, in fact, it was unconstitutional bunk.  (That’s legalese for “full of crap and disrespectful of precedent.”)  Jane has also heard a few other rumors that she detailed here.  In any case, the FISA bill was transferred out of Intel, to the Senate calendar, and then into the SJC — there was no new number given to the SJC version — so are they the same bill or separate ones?

I am told that the Intel Committee version of the bill cannot be brought up without the Judiciary version, because the legislative history is intertwined since there is not a separate number.   And that is very good news — because the SJC calls into substantial question basket warrants, retroactive immunity and a whole host of other bad legal precedents that, frankly, would have been easily challenged in the courts as unconstitutional as written. 

The Judiciary Committee succeeded in making something very clear yesterday: they are unwilling to ignore the years of precedent and respect for the Constitution and the rule of law for the passing whims of a unilateral executive.  This was a huge victory for the good guys, and I, for one, am enjoying it.

The following are the potential scenarios as to what may happen with this as we move forward:

1.  The Judiciary bill replaces the Intel bill entirely and is voted on as the FISA bill on the floor of the Senate.  Since the Judiciary got the bill from Intel, and it was not given an individual number when they received it, there is an argument that the Judiciary bill supercedes/replaces the Intel bill entirely.  If this is what happens, expect an enormous wailing and gnashing of GOP-ness, and a grudging behind-the-scenes respect for a tactical smackdown from the Dems.  (FWIW, I am told that Reid’s office may be leaning this way — and that is good news, if true.)

2.  The Judiciary bill is an amendment to the Intel bill, and will have to be voted as such on the Senate floor — if voted through, it could replace the entire Intel version.  This would be a huge floor fight.

3.  There are two bills — the Intel version and the Judiciary version.  As Majority Leader, Harry Reid can choose between them under Rule 14, and offer whichever one is chosen to the floor of the Senate for a vote.

4.  There is a third bill in play:  the House passed the amended RESTORE Act yesterday evening, and it could also be pulled in as the bill on which votes will be cast on the floor of the Senate under the Rule 14 prerogative for Harry Reid.

5.  Under Rule 14, I am told that there is also an additional option:  Harry Reid could take parts of all the bills and craft his own substitute.  I think this is politically unlikely, given the make-up of the Democratic caucus and the huge disparities between folks like Pat Leahy and Russ Feingold on the side of the rule of law and Joe Lieberman on the side of…whatever Dick Cheney wants him to side with in the moment.  And because the Senate is so tightly divided, and the GOP caucus not too likely to split off many votes, this is the most unlikely of all the scenarios, in my opinion.

Where do we go from here?  I’ll try to spell it out in the next post.  But take a moment to think about this:  you helped bring this about, your calls, your faxes, your pressure on this issue — the public pressure for the rule of law and the constitution over Presidential fiat gave Sens. Leahy, Feingold, Durbin, Cardin and a whole host of others the space they needed to make solid constitutional arguments and make them stick.  The various permutations of the bills — from the SJC and the RESTORE Act — are not perfect, but they are a helluva lot better than the Intel bill was, and that is several steps in the better direction.

So kudos to every person who picked up a phone, sent an e-mail or a fax, or cornered an elected representative at an event.  You have to savor the little victories where you find them — and this one is an important one for all of us.

(Photo of the Senate side of the Capitol via Tenunda.)

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com