As bad a week as it’s been for John McCain, it’s been a TERRIBLE week for Dianne Feinstein.  She watched in the Senate Judiciary Committee as Attorney General Michael Mukasey, who she voted to confirm, put on as bad a performance as Alberto Gonzales ever did, covering for the Administration’s criminal actions, from torture to politicization of the Justice Department.  Then, of course, there was the FISA vote, where she bowed to President Bush and voted to participate in a coverup.  Despite this public statement just two weeks before the vote:

I believe the court should not grant immunity without looking into the legality of the companies’ actions. So if there is an amendment that does support this, I would intend to vote for it.

When it came down to voting on precisely that amendment, she weaseled her way out of it.

Amendment Number: S.Amdt. 5059 to H.R. 6304 (Foreign Intelligence Surveillance Act of 1978)

Statement of Purpose: To limit retroactive immunity for providing assistance to the United States to instances in which a Federal court determines the assistance was provided in connection with an intelligence activity that was constitutional.

Feinstein (D-CA), Nay

And of course, she voted against stripping immunity, for cloture, and for the final bill.

Then there’s this water bond which is more of a true compromise for DiFi, but still includes funds for building dams, and ignores unspent water funds from a 2006 bond issue.  So the idea is to borrow on top of the borrowing.

Courage Campaign is considering whether or not to push censure, but CREDO Action isn’t waiting to voice their displeasure.  From an email:

On July 9th, sixty-nine senators voted to gut the Bill of Rights. They voted to hand President Bush the power to spy on Americans without warrants, and to grant retroactive immunity to the telecoms who allegedly helped him break the law in the past.

No wonder the Associated Press headline following the bill’s passage read, “Senate bows to Bush.”

So why does a president with the lowest approval ratings since the advent of polling have the power to eviscerate the Constitution?

Because Sen. Feinstein gave it to him.

We can’t undo what our senators have done. But we can tell them that we can’t believe they’d rather protect President Bush and his law-breaking cronies than the civil liberties of all Americans.

Click here to tell Sen. Feinstein that you are watching, that you are disappointed, and that you won’t sit idly by while our Congress destroys our Constitution.

After you sign the petition, please be sure to tell a few friends.

It’s really the establishment mindset, afraid of being labeled weak and then bowing to the opposition party’s demands, and not recognizing the irony, that must be stopped.  And there’s no greater symbol of that mindset than DiFi.

UPDATE: (Bob)  With rumors swirling that a Federal Grand Jury is poised to indict Don Perata, this has also the week that Perata has been telling anyone who will listening that the FBI investigation is a political witch hunt. Which, if true, means DiFi’s infamous statement that he, “is not Alberto Gonzalez” in announcing her support for Mukasey’s confirmation looks all the more ridiculous. Perata defenders like Roger Salazar and Jason Kinney and Bob Mulholland can use the above link to cast their votes to hold Feinstein accountable. Interestingly, Mukasey’s confirmation blunder was cited specifically in the previous censure push when Art Torres put his credibility on the line defending her. And this week DiFi undermined that credibility with retroactive immunity caving at the same time CDP credibility was threatened with the Perata handout which rationalizers say was necessary because of Mukasey. Accountability matters.  

The handshakes have been made, the contribution checks have been written, and the telecom industry and corporate shill Democrats have joined forces to immunize lawbreaking and undermine the rule of law.  This time, for real.

A final deal has been reached on a rewrite of electronic surveillance rules and will be announced Thursday, two congressional aides said.

The aides said the House is likely to take up the legislation Friday….

As of Wednesday, sources said the new bill would allow a federal district court to decide whether to provide retroactive legal immunity to telecommunications companies being sued for their role in the Bush administration’s warrantless surveillance program….One source said the federal district court deciding on retroactive immunity would review whether there was “substantial evidence” the companies had received assurances from the government that the administration’s program was legal.

Absolutely absurd.  Not only does this bill still allow for mass surveillance on American citizens, but according to its provisions, if the Attorney General wrote a “get out of the Constitution free” note to its telecom partners, which we alrady know they did, then they are allowed to violate federal statutes.  The telecoms don’t have any lawyers who can provide their own analysis, apparently.  I guess all the money goes into lobbying.  This is total amnesty without any way of discovering who broke the law and when.  The entire point of telecom immunity was to shut down any investigations into spying on Americans.  Democrats are cupable for having not spoken up to stop this when they had the chance and the Hoyer-Rockefeller axis wants to just bury the bodies.

This will come up for a vote as soon as TOMORROW in the House, despite being just released today.  Your representative needs a call.  Joe Baca is a Blue Dog who supported the good FISA bill, the one without amnesty.  He in particular needs some attention.

Rep. Joe Baca, D-Calif. — Phone: (202) 225-6161, Fax: (202) 225-8671

When this reaches the Senate, it will be another accountability moment for Dianne Feinstein.  She has tried to duck this debate repeatedly, but she can tell us by her vote where she stands – with corporate execs and lobbyists, or with the rule of law and the right to privacy.

Several months ago, at a time where Dianne Feinstein was facing censure for a series of votes siding with the Bush Administration over Democratic values or the Constitution, Art Torres assured us all, in a highly emotional speech, that he discussed telecom immunity, a forthcoming issue, with her, and that “thanks to her” immunity was stripped from the bill.

“Don’t believe me, ask my friend Senator Dodd, who will tell you that she led the effort along with him to make sure that [immunity] wasn’t in the official bill that emerged from the Senate Judiciary Committee.”

That wasn’t true then, of course; Patrick Leahy’s ju-jitsu by putting immunity in Title II of the bill and then dropping it was what did the trick.  But of course, that wasn’t enough.  The Intelligence Committee bill, the one with amnesty for the phone companies, was what made it to the floor.  Feinstein offered some amendments.  Her “exclusivity” amendment to make FISA the exclusive means under which government spying takes place “failed” because only 57 Senators voted for it; under the unanimous consent agreement, that particular amendment needed 60 votes to pass because it had too much support.  This essentially invalidates all laws passed by the Congress, since in the absence of exclusivity, what is implied is that the President has the ability to go outside whatever law is passed.

So in that environment, there was a vote to strip telecom immunity from the bill.  This is something the President alone can’t dictate to the courts.  This is the only opportunity to find the truth about how our government spied on us.  And Dianne Feinstein, hoping that we weren’t paying attention, voted against stripping it out.

It was a few months away from any pressure on her, so she felt OK with allowing the President to break American laws.  Here’s what’s happening today:

The Senate today — led by Jay Rockefeller, enabled by Harry Reid, and with the active support of at least 12 (and probably more) Democrats, in conjunction with an as-always lockstep GOP caucus — will vote to legalize warrantless spying on the telephone calls and emails of Americans, and will also provide full retroactive amnesty to lawbreaking telecoms, thus forever putting an end to any efforts to investigate and obtain a judicial ruling regarding the Bush administration’s years-long illegal spying programs aimed at Americans. The long, hard efforts by AT&T, Verizon and their all-star, bipartisan cast of lobbyists to grease the wheels of the Senate — led by former Bush 41 Attorney General William Barr and former Clinton Deputy Attorney General Jamie Gorelick — are about to pay huge dividends, as such noble efforts invariably do with our political establishment.

Every single Senator, all of whom committed to a unanimous consent agreement that precluded any possibility to amend the bill, is responsible.  But everyone in the world knew Dianne Feinstein would sell us out and give the phone companies what they wanted for violating civil liberties.  Everyone, that is, except for Art Torres.

I’d like a personal apology, thanks.  So should everyone who was in that room in Anaheim.

[UPDATE]: In case anyone was wondering, DiFi’s “good faith” amendment fell to defeat, 41-57.  Chris Dodd rightly voted against it, because it was an idiotic compromise.

Several months ago, at a time where Dianne Feinstein was facing censure for a series of votes siding with the Bush Administration over Democratic values or the Constitution, Art Torres assured us all, in a highly emotional speech, that he discussed telecom immunity, a forthcoming issue, with her, and that “thanks to her” immunity was stripped from the bill.

“Don’t believe me, ask my friend Senator Dodd, who will tell you that she led the effort along with him to make sure that [immunity] wasn’t in the official bill that emerged from the Senate Judiciary Committee.”

That wasn’t true then, of course; Patrick Leahy’s ju-jitsu by putting immunity in Title II of the bill and then dropping it was what did the trick.  But of course, that wasn’t enough.  The Intelligence Committee bill, the one with amnesty for the phone companies, was what made it to the floor.  Feinstein offered some amendments.  Her “exclusivity” amendment to make FISA the exclusive means under which government spying takes place “failed” because only 57 Senators voted for it; under the unanimous consent agreement, that particular amendment needed 60 votes to pass because it had too much support.  This essentially invalidates all laws passed by the Congress, since in the absence of exclusivity, what is implied is that the President has the ability to go outside whatever law is passed.

So in that environment, there was a vote to strip telecom immunity from the bill.  This is something the President alone can’t dictate to the courts.  This is the only opportunity to find the truth about how our government spied on us.  And Dianne Feinstein, hoping that we weren’t paying attention, voted against stripping it out.

It was a few months away from any pressure on her, so she felt OK with allowing the President to break American laws.  Here’s what’s happening today:

The Senate today — led by Jay Rockefeller, enabled by Harry Reid, and with the active support of at least 12 (and probably more) Democrats, in conjunction with an as-always lockstep GOP caucus — will vote to legalize warrantless spying on the telephone calls and emails of Americans, and will also provide full retroactive amnesty to lawbreaking telecoms, thus forever putting an end to any efforts to investigate and obtain a judicial ruling regarding the Bush administration’s years-long illegal spying programs aimed at Americans. The long, hard efforts by AT&T, Verizon and their all-star, bipartisan cast of lobbyists to grease the wheels of the Senate — led by former Bush 41 Attorney General William Barr and former Clinton Deputy Attorney General Jamie Gorelick — are about to pay huge dividends, as such noble efforts invariably do with our political establishment.

Every single Senator, all of whom committed to a unanimous consent agreement that precluded any possibility to amend the bill, is responsible.  But everyone in the world knew Dianne Feinstein would sell us out and give the phone companies what they wanted for violating civil liberties.  Everyone, that is, except for Art Torres.

I’d like a personal apology, thanks.  So should everyone who was in that room in Anaheim.

(bumped – promoted by Brian Leubitz)

Marcy Wheeler has two excellent stories up today at her new home which I highly recommend to you if you want to understand Dianne Feinstein’s evolving position on FISA and retroactive immunity for the telecoms.  We know that, several weeks ago, Feinstein was wholly in support of immunity, having happily voted for it in the Intelligence Committee.  During yesterday’s floor debate, she offered a couple amendments, both with the goal of putting the warrantless wiretapping program and all questions about it, now and forever, under the authority of the FISA court.  In Marcy’s first piece, she notes the conservative reaction to Feinstein’s amendment asking that the question of immunity be decided by the FISA court instead of the Congress.

over…

Now, before Orrin Hatch started accusing “partisan blogs” of fear-mongering on this debate, he had an apoplectic fit about DiFi’s amendment, lumping it in with more generalized DFH opposition to immunity. He strongly suggested DiFi’s amendment would be a poison pill for him–and presumably the other Republicans following Dick Cheney’s orders dutifully.

And there’s a reason for that. When the SSCI passed their immunity bill, they did so only by inventing the fiction that it was legal for telecoms to wiretap at the behest of the government if they had the authorization of the Attorney General or “certain other officers.” They did so because they know–having read the authorization letters–that one of the letters (presumably the one for March 11, 2004), was signed by White House Counsel Alberto Gonzales.

This is important because the FISA court, being authorized to view classified information, would be able to view all the relevant documents, and may make the ruling that people not authorized to sign off on the wiretapping program did so, which would make the telecoms liable for continuing the wiretapping program beyond March 10, 2004, at a point when the AG and the Acting AG determined it to be unlawful.

In other words, DiFi’s amendment threatens to scuttle the real intent of the immunity provision, protecting Bush from any legal consequences for wiretapping illegally.

We all know how sloppy and reliant on extreme theories of unchecked executive power the Bush Administration is.  This would put them in a tremendous bind.  And Feinstein’s signal that she would “have a very tough time” voting for the full bill without this compromise, which is co-sponsored by Bill Nelson, means that the more moderate faction of the Democratic caucus is not interested in handing over blanket immunity (I reserve the right to be disappointed in DiFi if and when she turns her back on this).

In a later post, Wheeler takes a closer look at the DiFi amendment and her floor statement.  As I noted, Feinstein was initially making all kinds of excuses that the amnesty she voted for in the committee wasn’t really amnesty, that the poor telecom companies can’t defend themselves because Bush is handcuffing them by invoking state secrets, that they acted after 9/11 to help protect the nation (even though the government was asking for telecom help before 9/11), that “These companies have no financial motives in providing assistance to the Government.”  That’s why it was such a surprising outcome to have her next introduce this amendment.  But she goes on to imply that the Bush Administration was relying on inherent authority under Article II to make legal their wiretapping program, and that it’s high time we got some judicial review over that from a court able to hear secret testimony (so the government can’t hide behind the state secrets privilege).  Here’s the relevant part of DiFi’s statement:

The amendment I am going to submit would put before the FISA Court the question of whether the telecommunications companies should, in fact, receive immunity based on the law.

The FISA Court would be required to act, en banc, and how this is, is 15 judges, Federal judges, appointed by the Chief Justice, they sit 24/7, and this is all they do, they would act en banc. They would look at the following: Did the letters sent to the carriers which were repeated virtually every 35 to 45 days over the last 4 to 5 years, did the letters sent to the carriers meet the conditions of law.

Section 2511 of title 18 clearly states that a certification from the Government is required in cases where there is no court order. That is the only two ways that FISA allows this to proceed, by written certification or by court order.

The Government has to certify in writing that all statutory requirements for the company’s assistance have been met. So the FISA Court would first look at whether the letter sent to the companies met the terms of this law. The court would then look at, if the companies provided assistance, was it done in good faith and pursuant to a belief that the compliance was legal.

Finally, the FISA Court would ask: Did the defendants actually provide assistance? If the FISA Court finds that defendant did not provide any assistance to the Government or that the assistance either met the legal requirements of the law or was reasonably and in good faith, the immunity provision would apply.

If the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies. I think the merit of this approach is it preserves judicial review, the method we look at in order to decide questions of legality.

Now, the bulk of the Members of this body, probably 90 percent of them, have not been able to see the written certification, so you do not know what was there. What we ask in this amendment is: FISA Court, you take a look at these letters, and you make a ruling as to whether they essentially meet the certification requirements of the FISA law.

Therefore, there is judicial review to determine whether, under existing law, this immunity should be forthcoming. It is a narrowing of the immunity provisions of the Intelligence bill. I think it makes sense. I read the letters. I am a layperson, I am not a lawyer. I cannot say whether they met the immunity provisions. Others can say that.

But it should be up to a court to make that decision. It seems to me that if the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies.

The key point to make here is that Feinstein HAS seen these letters.  She knows what they say and who authorized them.  She’s claiming that she doesn’t know whether or not the telecoms are eligible for immunity (then why did she vote for it?), but clearly she has a little more knowledge than the average citizen or even the average Senator.  And this gets to the heart of all of the crazy unitary executive theories that the Administration has been making from practically the moment they got into office.

So, there has obviously been a subtle but important shift in Feinstein’s thinking.  And without the concerted effort of the progressive grassroots in California, I think it’s fair to say that wouldn’t have happened.  The Feinstein bloc is now another hurdle for those who want to immunize phone companies for lawbreaking, maybe one that’s insurmountable and can derail the whole bill.  It’s up to the grassroots to hold Feinstein to her word.  Her amendment deserves a full and honest hearing.  If it passes, we can trust the judicial review process to go forward.  But if it fails, the real question is whether Feinstein will be as good as her word, and block the bill for failing to have proper oversight.  This is why we must continue the pressure over the holidays and let her know that we’re still watching.

If you didn’t already know, the Senate Judiciary Committee reported out a FISA bill yesterday that does not grant immunity to telecom companies for participating in the illegal spying on Americans in George Bush’s warrantless wiretapping program.  It’s convoluted, but there were basically two bills, a Title I and a Title II.  Title I had no immunity; Title II did.  Russ Feingold tried to strip immunity from Title II, but he failed, and DiFi voted for immunity.  But at the end of the day, only Title I got reported out.

This is NOT a total victory.  First of all, Harry Reid could decide to bring the Intelligence Committee’s bill, which has immunity, to the full floor.  And there will almost certainly be an amendment calling for immunity on the floor, even if an immunity-free bill is called up for vote.  So the Judiciary Committee basically punted.

But this James Risen article untangling what happened yesterday has an interesting little nugget halfway down the page.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the panel, is pushing a plan that would substitute the federal government as the defendant in the lawsuits against the telecommunications companies. That would mean that the government, not the companies, would pay damages in successful lawsuits.

Senator Sheldon Whitehouse, Democrat of Rhode Island, said in an interview after the vote Thursday that he would support a compromise along the lines of the Specter proposal.

Mr. Whitehouse was one of two Democrats who voted against an amendment proposed by Senator Russ Feingold, Democrat of Wisconsin, that would have banned immunity for the companies. “I think there is a good solution somewhere in the middle,” Mr. Whitehouse said.

Senator Dianne Feinstein, a California Democrat who also opposed Mr. Feingold’s measure, pleaded with Mr. Leahy to defer the immunity issue because she wants more time to consider several compromise proposals.

(I was under the impression that Herb Kohl also voted against the Feingold Amendment -ed.)

Feinstein had no need for compromise earlier in the week.  She was gung-ho for telecom immunity.  Clearly the pushback in the Senate amped up the desire for compromise, even if Specter’s is a fig leaf that would still get the telecoms off the hook while effectively stopping lawsuits through an expected invocation of state secrets.  But I have to assume that the heat Feinstein is taking from the grassroots back in California is driving her thinking as well.  If Leahy passed out immunity she would be seen as the biggest cheerleader for it – AGAIN, after Southwick and Mukasey.  It would be the last straw.  So she’s trying to get out in front and take credit for some kind of compromise that will eventually come.

So the progressive movement can take a little credit for winning this battle, as DFA did in a hyperventilating email last night.  We have not yet won the war, and there will absolutely be a floor fight and a bullshit centrist compromise to work against. 

This isn’t over.

(Also the rest of the bill is pretty good, and has things that the Bush Administration has vowed to reject, always a good thing.  But will the Congress cave?  That’s the big question.)

UPDATE: This DKos post notes that Harry Reid is going to bring up the Intelligence Committee bill as the main bill, with the Judiciary Committee bill as a substitute.  That’s the exact opposite of what he said yesterday.  This is very fluid and there’s likely to be shenanigans.

(UPDATE: The ACLU and CREDO, formerly Act For Change, are also pushing Sen. Feinstein.)

In addition to the buzz in the blogosphere about activist efforts to censure Dianne Feinstein for her votes with Bush Republicans on key issues, some of the top progressive organizations have DiFi in their sights.  MoveOn is asking their California members to call Feinstein about tomorrow’s vote in the Senate Judiciary Committee over the revised FISA bill, and tell her not to grant retroactive immunity to telecom companies who violated the law by handing over information to the Bush Administration.

Senator Dianne Feinstein is facing tremendous pressure from the Bush administration. Tomorrow, she will likely vote on whether or not to let the phone companies off the hook for helping the president illegally spy on the phone calls and emails of innocent Americans.

President Bush wants immunity for these companies to cover-up his own illegal actions. The pending lawsuits against companies like AT&T may be the only way we ever find out how far the Bush administration went in breaking the law.

We have to make sure Sen. Feinstein hears from us right away. Can you call Sen. Feinstein and tell her to vote against immunity for big corporations who break the law? Tell her that voters want accountability and oversight-not immunity.

Here’s where to call:
Senator Dianne Feinstein
Phone: 202-224-3841

DiFi has already signaled her intention to allow telecom immunity for lawbreakers, but clearly she needs to feel the pressure.  What is far more interesting is DFA’s effort to have Feinstein removed from the Senate Judiciary Committee altogether.  on the flip…

In California, we have a law — commonly called the three-strikes law. And, like all laws, I think it ought to apply to everybody — including my Senator, Diane Feinstein.

Too many times Senator Feinstein has failed to represent the people of California. Now she has announced that this Thursday she will support President Bush for the third time in two months. And it all comes down to Senator Feinstein’s role on the Judiciary Committee.

Strike One: A Bush nominee for the federal bench, Leslie Southwick has a long history of rulings in lower courts that violate equality laws. Feinstein cast a deciding vote to give him a lifetime seat.

Strike Two: Michael Mukasey, nominated for Attorney General, refused to say he would oppose torture. But Feinstein voted to send his confirmation to the Senate floor anyway.

Now she’s poised for her third bad vote in a row, on a rework of the FISA Act — the law that’s supposed to protect us all against illegal wiretapping […]

Please call Senate Majority Leader Harry Reid right now and demand he remove Senator Feinstein from the committee and replace her with a Democrat who will stand up to President Bush’s abuse of power.

Senator Harry Reid
202-224-3542

As I’ve said, progressives in California are looking for ways to get DiFi’s attention, and inform her that she works for the people of this state, not elites in DC.  These are two national organizations working at the local level to do just that.