Constitution gutted

Gutting the Constitution

The Senate is expected Friday to begin consideration of bills to restore FISA, after a panicked Congress gutted FISA’s Constitutional protections last August. Final votes may not occur until Monday or Wednesday, but procedural votes today could influence whether the beating the Fourth Amendment took will be reversed and whether the telecoms get the retroactive immunity they and the Administration want for spying illegally on Americans.

We’ve been urging Congress on two basic objectives: (1) reinstating adequate review by the FISA Court of surveillance requests and actions, and (2) denying retroactive immunity for the telecoms. Immunity would end the private lawsuits that are seeking to hold the telecoms accountable for illegally spying on Americans.

Recall that the August legislation that gutted FISA and the Fourth Amendment was stampeded through Congress under the pretext that the FISA Court had unexpectedly issued still secret opinions requiring NSA to obtain FISA Court warrants before intercepting strictly foreign-to-foreign communications that pass through US facilities. Until then, everyone thought such strictly foreign-to-foreign communications were outside FISA’s requirements.

NSA and the Justice Department complained that the paper work for getting Court warrants was too burdensome for such communications, and the result, NSA claimed, was a loss of such intelligence for some unknown period. Everyone panicked and agreed we should fix FISA to exempt such communications. The "fix" with the Orwellian title of "Protect America Act" (PAA), was a travesty, and the Democrats vowed to repair the damage before the new statute expires in February, 2008.

The PAA went beyond the foreign-to-foreign issue and instead gutted FISA. It stripped the FISA Court of its ability to oversee some foreign-domestic communications, and it transferred oversight authority in some cases to the Attorney General and/or Intelligence Director. The fix may also have weakened the protections for minimizing intelligence collection and dissemination following broad sweeps or data mining, even though Congress had twice prohibited such data mining. We still don’t know what NSA does, and most in Congress don’t know either. The Hill reviews this sordid history.

You’ll recall there are three bill versions floating around, none of them perfect but some clearly preferable. There are two Senate versions: (1) one by Sen. Rockefeller’s Senate Intelligence Community (SIC) that does a poor job on FISA Court oversight and grants immunity; (2) one by Sen. Leahy’s Senate Judiciary Committee (SJC), which does a better job on FISA Court oversight and does NOT grant immunity; and (3) one passed by the House, which restores much of the FISA Court oversight and doesn’t grant immunity.

The expectation for Friday is that Senator Reid will inexplicably ignore the request of 14 Senators who asked Reid to start with the SJC version; instead he’ll likely bring up the weaker SIC version with immunity. The stronger SJC version without immunity is available as a substitute. If this is correct, any efforts to change the base bill — the weak SIC version — must gather enough votes to do so. As I understand it, this means that any effort to strip telecom immunity out of the SIC version and/or substitute the preferable SJC version (or the better overview parts of it) must overcome whatever procedural hurdles may exist — think 60 vote requirements under the "Revised Republican Constitution." So fixing this mess looks like an uphill battle.

Weeks ago, Senator Dodd notified the leadership of his intent to place a "hold" on and filibuster any bill that provided telecom immunity, so that may kick in tomorrow if Reid brings the SIC version forward. Dodd deserves our support. In addition, all the Democratic Presidential candidates have said they’ll support a filibuster on the telecom issue, so it will be important to hold them to their promises if/when we get to that.

Senator Reid does not have to honor Dodd’s hold, although Senate tradition strongly suggests he should. Glenn Greenwald has more on why this matters. (h/t selise) What happens next remains to be seen, but it looks like we need to let Senator Reid and the Senate leadership know we support Dodd and the 14 Senators, and that whatever the procedural steps, we support a bill that restores strong FISA Court oversight (no "blanket" warrants) and rejects telecom immunity.

Our first task this a.m. is to let Harry Reid know he should honor Dodd’s hold and honor the request by the 14 Senators: bring the SJC version of the bill without immunity to the floor as the "base" version, to force the bad guys to amend that, rather than forcing our guys to amend the lousy SIC version. Make sense?

One more thing: Bush will most likely veto any bill that restores FISA Court oversight or that fails to provide telecom immunity. If he’s forced to veto the bill, that means the August PAA expires in February. Some of us think that’s just fine, but we’re not there yet.

The Capitol switchboard number is 1-800-828-0498; Harry Reid’s numbers are here.

p.s. We have a secret guest coming by later to keep you updated.



John has been writing for Firedoglake since 2006 or so, on whatever interests him. He has a law degree, worked as legal counsel and energy policy adviser for a state energy agency for 20 years and then as a consultant on electricity systems and markets. He's now retired, living in Massachusetts.

You can follow John on twitter: @JohnChandley