solarbird | FISA debate (Liveblogging, updates ongoing)

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Kit Bond (R-MO) arguing for retroactive immunity: "We don't use [telecoms] as punching bags to get at our President." "It would put ...intelligence at great risk [not to provide immunity]" Talked earlier about how the "President" didn't have "time to wait for a legislative process" and how not passing this instantly proved him right. Strawman arguing against claims (which don't exist AFAIK) that retroactive immunity is unconstitutional. This bill "tools to fight the terrorists."

Orrin Hatch (R-UT): Condemns all amendments to FISA. Dismisses protests against Senators complaining about not knowing more about what's going with the Chief Executive's illegal domestic spying programme (the TSP). Condemns "needless" delay on retroactive immunity. Says inspector general cannot review legality of the TSP. Condemns suits against "Congress should not persue oversight via litigation." "Worse than a fishing expedition, this is draining the Loch Ness to find a monster; sometimes what you're looking for doesn't exist." Complaints about the "apparent paranoia" of opponents. "The 4th Amendment does not proscribe warrantless searches." Compares opponents of warrantless domestic spying to people pulling batteries from smoke detectors and "a slap in the face and a kick in the gut." Mocks and misrepresents claimants in lawsuits as paranoid, and an "irrational belief in government conspiracy." [Note that in reality, every ruling has so far been against the government, and we know several cases where people actually do know they specifically were spied upon.] "We should not discuss what our capabilities are." "Will face irreversible harm." "False claims and false logic." "Many of the people who make arguments against this... should join the back helicopter crowd and wear tinfoil hats."

Jay Rockefeller (D-WVA) requests support of bill from Diane Feinstein (D-CA) be read in; requests on his own behalf to read in a commentary against the most recent ruling against this bill.

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Russ Feingold (D-WI): Calls refusing to allow 70 Senators to know what they're voting on is a "very bizarre" interpretation of Intelligence Committee duties. The Intelligence Committee is "not a replacement of the Senate." Reacts against "black helicopter crowd" description of himself and other opponents. Surprised to hear several Senators "still defending the legality" of the Chief Executive's warrantless spying programme, condemns description as legal. Calls the idea that notifying the "gang of eight while keeping the intelligence committee in the dark" constitutes Congressional assent insane (not his word). Describes lies by Alberto Gonzalez and the administration's misleading of Congress in general. Notes 2005 lies by Alberto Gonzalez to Congress about this programme and assertion that the Chief Executive has the right to ignore the law. Repeats an assortment of lies by the administration directly stating that they had to get warrants, while they had already had years of a programme of warrantless spying. "We did not authorise the President to wiretap American citizens on American soil" in the 2001 authorisation of the use of force. "You can't say that any claim of executive power prevails over a statute, at least not if you're serious about rule of law, or interpretation of the Constitution." "We're talking about the President acting in direct violation of a criminal statute." Points out previous Supreme Court rulings and the three-point test for testing claims of executive power. "Every time the Supreme Court has confronted a statute upholding the limiting of Presidential power, it as upheld the statute." "Not a single court... has considered whether after FISA was enacted, the President somehow has the authority to somehow bypass it and authorise warrantless wiretaps." Notes recent court statement that the Chief Executive must follow FISA. Quotes section noting that exclusivity is already clearly defined. "This body should be condemning this administration for lawbreaking, not letting companies cooperating with it off the hook."

Talks about new surveillence powers allowing tapping of all electronic communications by Americans outside any country. Fails to prohibit "reverse targeting," using wiretapping powers of foreign targets to actually target Americans in the United States. Bill imposes "no meaningful consequences" for unlawful spying going forward; notes that illegally gathered information under the new bill can still be used; notes that upon Attorney General decision, the administration can spy without FISA approval; notes that this undermines the entire FISA court system. Notes complete lack of minimisation in the bill. Notes the Republican vice-chairman of oversight stating that this bill is the same bill as last time, with only "cosmetic changes." Notes exclusivity is good but FISA already had exclusivity and that was just ignored; why should this or any other administration follow this new exclusivity clause after the last one was ignored? The overseas spying on Americans warrant requirement is an improvement on paper, but it's not nearly enough. "This legislation is particularly discouraging; we discovered in late 2005 that the President authorised an illegal programme in blatant violation of this statute... Congress... was largely stonewalled... the fast majority in the House and Senate have never been told what happened." Notes that it's "a Democrat controlled Congress" is passing everything Mr. Bush wants, when a GOP-controlled Congress declined to do so in 2006. Notes that he's one of the very few people who has been fully briefed on the illegal programme and says that when this comes out, Congress will regret passing this bill. "I'm confident history will not judge this Congress kindly..."

Patrick Leahy (D-VT): Concurs with Sen. Feingold; condemns six years of warrantless, illegal wiretapping by the Bush administration; condemns pre-emption of court cases and rulings in progress; nobody going to be held accountable; bill will ensure Administration is "never held accountable" for its actions, places office of the President above the law. "So what i the law is violated? This bill makes a Federal court the handmaiden for a coverup... make no mistake, if Title 2 becomes law, we will take away the only avenue for Americans to address the harms to their privacy and their liberties, and there likely will be no review of this administration's illegal actions. Those who claim Americans can still pursue their privacy claims against the government, they know sovereignty is a roadblock and stops that; they know that cases against the government have been dismissed for lack of standing; they know about the government's ability to assert the states secrets document; they know [a case] that held the President's programme illegal was vacated for 'lack of standing.'" "We're telling Americans... we're closing the courthouse door in your face because we have to protect the president and those around him." "[This] supports unaccountability."

"Growing up in Vermont... we were told nobody's above the law, all my time in law school we're told nobody's above the law, we take an oath of office... we're also told no one's above the law. We're about to vote on a bill that says, well, the President, and those people around him, are above it." Talks about Marbury v. Madison (1803) being sacrificed to this administration's claim should be able to act without impunity and outside the law. "Tak[ing] away the only viable avenue for Americans to seek redress... and the only viable avenue to persue accountability... for this administration."

Arlen Specter (R-PA): "Preparing to do two things... unprecedented in the history of the US Senate" by 1) voting on something most Senators have no idea what is actually about and 2) stripping court cases in progress while flying in the face of Marbury v. Madison (1803). Note court opinions stating that the Chief Executive directly violated the law. Condemns voting on retroactive immunity for unknown crimes "where the members don't know what the programme is." "I suggest this may be an historical embarrassment." "Everybody knows we don't know what this programme is, but we're delivering retroactive immunity..." Speaks in favour of substituting the government for the telecoms as defendant. Notes cases have been pending of three years with lengthy opinions condemning the Presidential use of Article II - "but here we are stripping the court of jurisdiction. Has this ever happened before? It hasn't ever happened before." "I believe... historians will look back on this period from 9/11 to the president as the greatest expansion of Executive authority in history. Unchecked expansion of authority. President disregards the National Security Act of 1947 mandating notice to the Intelligence Committee; he doesn't do it. President takes legislation that is passed by Congress and he signs it and then issues a signing statement disagreeing with key provisions. And there's nothing Congress can do about it. And the Supreme Court of the United States has gone absent without leave on the issue in my legal opinion when the Detroit Federal judge found the terrorist surveillance programme unconstitutional, it was affirmed [sic] by the 6th Circuit in a 2-1 opinion on grounds of lack of standing; and then the Supreme Court refused to review the case... and again... we have Judge Walker declaring the act unconstitutional, and the Congress ought to step aside and let the Courts pursue their Constitutional function." Notes that he's going to support the bill even with immunity and stripping of judicial review and all that hell.

Bernie Sanders (I-VT) (only has 30 seconds) "We will and must [protect the American people] within the context of the Constitution of the United States and the law of the land. No individual, no president is above the law. This president perhaps more than any other in history has abrogated the Constitution of the United States; the time is now to stand up and say no more, let us defeat this legislation, let us assure the American people that in fact we are a nation of laws, not individuals."

Jeff Bingaman (D-NM): Describes various amendments being offered. Notes programme was violation; we should at least know what actions we're shielding from liability; etc.

Chris Dodd (D-CT): Describes amendment to strip retroactive immunity. "This programme will still be ongoing except for a whistleblower that helped identify the programme." "The one issue we don't subscribe to is the notion that in order to be more secure, you have to give up rights. That is a fundamentally flawed idea. And every generation that has suggested it, and adopted it, has regretted it, in one case after another. Whether it was the internment of Japanese Americans out of fear, or other such cases, in every instance we've abandoned rights for security, we have come to regret it deeply. ... Allow the judiciary to do its job. That's what they exist for; that's what the founders created, three co-equal branhces of government... retroactive immunity for companies... may well soon become the law. That's the danger here. And as certain as it appears that the outcome of these votes will be, equally certain in my view is that this matter will not end today, regardless of what we do here..." Dodd thinks that retroactive immunity may be unconstitutional on powers pre-emption grounds; I think he's wrong, but it's a straw. Congress is acting with impulsiveness and out of fear... "This so-called compromise strikes no balance at all..." "The courts have continuously shown an ability to handle cases with sensitive security issues..." Notes that a Reagan appointee in California (Walker) ruled that FISA preempts the state secrets privilege and that telecoms can defend themselves. "Now is not the time to close the courthouse doors on this issue." "As complex as diverse as relentless as the assault on the rule of law has been, our answer to it is a simple one; far more than any president's lawlessness, the American way of justice remains deeply rooted in our character as a people, that no President can disturb. That is why even on this day, I remain full of hope and faith that we can unite security and justice, because we already have over generations." Claims no illusions about outcome of these votes. "This notion that it is the rule of law that keeps us safe should not be controversial, should not be a partisan divide." "I do not believe history will judge this president kindly for his contempt for the rule of law, but will history be any kinder to those of us who have served as these transgressions gathered on our watch?" Talks about repudiation of the Geneva conventions, of torture, of habeas corpus, of illegal spying; "history will not forget our role in any of this." "Does America stand for the rule of law, or for the rule of men? That question never goes away... it will haunt us long after this bill passes, long after this administration recedes into history... it is a battle for the American soul, waged between our better angels and our worst fears. The founders answered that question correctly; will we?" The Constitution must not be suspended for revenge. Quotes Margaret Thatcher; "When law ends, tyranny begins."

Jay Rockefeller (D-WV): Requests time check; about 30 minutes of debate remaining. Calls Mr. Bush's warrantless spying programme "a tragedy" but again pretends the compromise fixes things instead of retroactively legalising it. Notes Bush administration official endorsement of the bill as a good thing. "Critical to the nation's security." Terrorist scare talk about "you can't know what's in any suitcase." "We all know... that United Airlines 93 was headed for this building..." talks about terrorists are "serious in their work" and "patient in their work" and therefore all this must get passed right now. Praises all the elements of the bill, as expected. Asserts the bill is not a statement on the legality of the illegal spying programme. Lauds bill more, talks about how important it is. Talks up exclusivity as "oversight," which it isn't. Talks about what an improvement it is that they now negotiate with intelligence services to get briefed, how they get a little nervous about it now. Urges opposition to all amendments, and yes vote on final passage.

Bill Nelson (D-FL): asks to put a statement in the record.

Maria Cantwell (D-WA): Must think about long-term consequences, states supporters mischaracterising the bill, notes authorisation of warrantless spying on US citizens on US soil; calls changes "cosmetic." "The administration wants to make sure no court has the opportunity to review the potential illegal activity that's part of this bill, and that's of great concern to me." "This bulk collection of innocent Americans private communication is unacceptable and contrary to Americans' values and the fundamentals of our Constitutional protection." Notes that Bush Administration ignored previous exclusivity of FISA; says Congress cannot ignore Constitution and that courts have been ruling that Presidential authority does not trump law. "Congress should not be providing blanket immunity for telecommunication companies that cooperate with warrantless wiretapping programmes."

Bill Nelson (D-FL): Calls the bill a balance of "goin' after the terrorists" vs. liberty. He's for it, of course. Says he doesn't believe in blanket immunity, but he's going to vote for the bill anyway. Says he'll back the amendment to delay immunity 90 days pending investigation.

Kit Bond (R-MO): claims that the District court being ordered to provide retroactive immunity is court review. Also, "Unless you have al-Qaeda on your speed dial, you're not going to be collected against." Claims there is no way to target "innocent American communications" under this bill. Claims Intelligence Committee is fully briefed and ridicules the idea that all of Congress should be fully briefed. "Should we brief the New York Times directly?" Talks about how leaks compromise intelligence. (Ironic, given the Plame thing.) Supports Article II interpretation of granting mass authority for warrantless wiretapping, claims any ruling would find limits unlawful. Calls TSP legal, claims against telecoms "frivolous," says "the intelligence community is fearful, and has lost cooperation in the past; they are taking risks by being good patriotic Americans, and there are some who want to punish them, they want to kick them to get at the administration." Claims there would have been many more terrorist attacks had Mr. Bush not decided that Article II let him ignore FISA law and had waited for Congressional updates and changes to FISA.

Chris Dodd (D-CT): Notes that even old FISA law granted 18,000+ warrants, denying only 5, before 9/11; condemns Kit Bond's assertion that the Chief Executive has Article II above-the-law status was even important. Notes that not all companies cooperated with the illegal spying programme. Demands that the courts be allowed to engage in their role and not be pre-empted by Congress; returns to the Rule of Law vs. Rule of Men argument.

Kit Bond (R-MO): Cranky now. Defends the Article II (unitary executive) theory again. Claims this FISA bill is needed to listen in on foreign communications, which is a lie. Claims people can sue the government on this, which the administration "It is not right to punish patriotic Americans... by subjecting them to frivolous lawsuit."

And now we get to the theatre of the vote. Remember, the important vote was actually before the July 4 holiday, when the bill was moved forward overwhelmingly, 80-15. That was the vote that mattered. These are for posturing and show.

Vote on amendment to strip retroactive immunity from the new FISA bill in progress (Dodd-Feingold). Roll call in progress. According to C-SPAN's crawl, 60 votes are required to pass, indicating that GOP holds continue to be honoured while Senator Feingold's are not. We already know how all of this will go, but I'll keep updating. Senator Specter just voted against the amendment he effectively spoke for on the floor. What a wanker. Senator Obama did drop in long enough to vote for the amendment, safe in knowing it will fail. Amendment fails 32-66.

Arlen Specter (R-PA): Speaking up to speak for second retroactive immunity amendment. (His version.) This one requires the District Court to determine constitutionality of the secret spying programme before granting retroactive immunity.

Jay Rockefeller (D-WVA): Unnecessarily places burdens on telecoms. (Burdens already there, I might add, in old FISA.) They shouldn't have to try to figure out whether something they're doing is illegal.

Vote on amendment requiring court to determine constitutionality of Presidential warantless wiretapping before granting retroactive immunity (Specter amendment) in progress. Roll call in progress. 60 votes required again, because always honouring GOP holds. Amendment fails 37-61.

Jeff Bingaman (D-NM): Notes bill requires court dismissal, followed by inspector general investigation into programme; that's the wrong order; cases should be stayed pending outcome of investigation (one year) then 90 day window for Congress to consider whether to revoke immunity; after which immunity would be granted.

Kit Bond (R-MO): I agreed to a limited overview of the programme... says shouldn't turn over Congressional oversight to an executive branch; says there's no reason not to give retroactive immunity; "they want to kick the administration by punishing the companies" with "frivolous lawsuits." Mr. Bush will veto with this amendment.

Harry Reid (Majority Leader, D-NV): First time I've seen him. Schedules some votes for the afternoon.

Vote on amendment staying court cases and immunity until inspector general investigation is complete (Bingaman amendment) in progress. Roll call in progress. 60 votes required again, because Democratic Senate leadership upholds GOP holds while disregarding those of their own party when the political class has decided it wants something done. Amendment fails 42-56.

Senate stands in recess until 11:15am Pacific time, after which there will be a vote on the final bill in the form passed by the House.

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