After voting against stripping telecom amnesty from the bill, and seeing her amendments fail, Sen. Feinstein voted against the final bill.  Here’s her statement:

“I have decided to vote against the FISA Bill before the Senate. This is not an easy decision because I strongly believe that we need to modernize the law relating to the gathering of foreign intelligence, and I support many of the provisions in the Senate bill.

However, I believe this bill didn’t do enough to protect against the assertion of executive power. I have said on many occasions that without the additional language to strengthen and tighten the exclusivity already in FISA, I could not support final passage.

I offered an amendment on this very issue. My amendment, which would have made it clear that FISA is the excusive authority for wiretapping U.S. persons for foreign intelligence purposes, received well more than a majority of this body – 57 votes. But it did not receive the 60 votes required. Given this strong vote, I remain hopeful that similar language will be included in a FISA bill that goes to the President.

There should never be another warrantless surveillance program. And I continue to believe that there should be a strong statement in law making it crystal clear that FISA must be followed, period.

Unfortunately, the bill before the Senate did not include such language and simply didn’t go far enough in protecting against executive power. That’s why I voted against the Senate bill.”

This elides the immunity issue and foregrounds the exclusivity amendment.  But take it for what it’s worth.

There are now 54 other Congresscritters to focus on as the FISA bill head into a House-Senate conference.  The House’s RESTORE Act is actually a fairly decent, though imperfect, bill.  FDL has a petition you can sign to demand that it becomes the basis for what is sent to the President.  Call your representative and reaffirm that.

UPDATE: From the comments, seems like Feinstein pulled a Lieberman here, voting for cloture, against the final bill, and releasing a statement about the latter and not the former.  This, of course, makes me a chickensh*t.  And Art Torres a bold truth-teller.  And Dianne a patron saint.

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.

Full disclosure: I work for the Courage Campaign

Update: Everything failed cloture.  McConnell’s bad amendment failed and so did Reid’s good-ish 30-day extension.  Which means that nothing has changed and we’re back to where everything was last week. Except that now President Bush has some nice fodder for his speech.  Updated update: Senators Boxer and Feinstein voted against cloture on McConnell’s and for cloture on Reid’s extension.  Good votes all.

All sorts of interesting developments on the FISA debate over the weekend as we swing into the next phase of the showdown.  First, the New York Times blasted leading Senate Democrats in an editorial for even considering an extension of Bush’s protections.  It also went ahead to say what so many of us know already: the notion that amnesty for telecom companies is anything but an attempt to cover up what this administration has been up to is…well…crazy.  The President contends that amnesty is necessary to get cooperation in the future, but it just doesn’t pass the smell test.  If the law is followed, it’s not a problem.  And if there’s any question about legality, the time to sort it all out isn’t well after the fact.  That’s the whole point of having a FISA court in the first place.

Senator Feinstein holds one of the votes that could be vacillating this week as FISA winds through vote after vote.  Call her and speak your mind about the ugly notion of providing amnesty to the telecoms.  She has many phone numbers:

202-224-3841 (Washington, DC)

310-914-7300 (Los Angeles)

415-393-0707 (San Francisco)

619-231-9712 (San Diego)

559-485-7430 (Fresno)

Either way, here we find ourselves.  Tim Tagaris noted over at OpenLeft that President Bush will veto any temporary extension of FISA.  Which means a lot of things, but the major one is that we can expect some theatrics.  There’s a State of the Union address coming soon, and as a result there’s a full chamber of Senators in town.  Including the ones with names like Clinton, McCain, and Obama.  Senators like that bring cameras, and Senators like cameras.

So here are the benchmarks to be watching for.  Senators Clinton and Obama will be joining with most (hopefully all) Democrats against cloture on Mitch McConnell’s odious offering on FISA.  That’s at 4:30pm eastern and is a good start.  Reid will be looking to pass a 30-day extension (the one Bush would apparently veto).  For now, this is the big one.

Rubber hits the road AFTER the State of the Union when there’s no fodder for the speech to be had.  The President is likely to establish the framework for the rest of the week during his speech, and it’s later in the week that Dodd’s filibuster will likely come to a head.  As a result, it will be when we get the real test of who stands where and who is willing to lead on this issue.

And yes, I’ll be keeping at least one eye on Senator Feinstein there.  She’s been pretty willing to buy the line of crap about telecom amnesty being important, which quite frankly it isn’t.  When it really comes down to it, where will she be? We’re gonna find out.

The Courage Campaign is one of many organizations fighting to make sure our Democratic Senators hang tough and beat Bush on this issue.  Help out with a call to Senator Feinstein and remind her we’re paying attention.

Full disclosure: I work for the Courage Campaign

FISA is grabbing national attention today as the debate rages on the floor of the Senate, and on the heels of Senator Feinstein’s response to Robert’s post at Courage, Senator John Edwards is calling for citizen pressure on Senators Boxer and Feinstein.  The heat is on and Edwards isn’t mincing words on this one- “It’s wrong for your government to spy on you.”  No kidding.

Senator Feinstein’s parsing position that would give away the keys to the store and validate immunity for Bush on this issue is a classic example of Democrats conceding the issue without a fight.  When Bismarck declared politics to be the art of the possible, it’s hard to imagine he meant the art of what is immediately possible.  Time and again, this administration has demonstrated that it is not only foolish but reckless to operate in “good faith” when the Constitution is involved, and moving constitutional judicial proceedings behind closed doors doesn’t inspire much good faith in me.  

Anyways, the leadership from John Edwards on this issue is much appreciated and a big boost to proponents of basic freedom.  It appears that Senator Clinton will not support the Dodd filibuster by returning to Washington and Obama has, so far as I know, not moved to add support either.  That’s disappointing but not entirely unexpected as the battle continues over every single Senator.

Keep up the pressuring phone calls to make sure that Senator Feinstein knows we’re serious about this one.

Check out the Edwards email on the flip.

When it comes to protecting the rule of law, words are not enough. We need action.

It’s wrong for your government to spy on you. That’s why I’m asking you to join me today in calling on Senate Democrats to filibuster revisions to the Foreign Intelligence Surveillance Act (FISA) that would give “retroactive immunity” to the giant telecom companies for their role in aiding George W. Bush’s illegal eavesdropping on American citizens.

The Senate is debating this issue right now — which is why we must act right now. You can call your Senators here:

   Barbara Boxer, (D): (202) 224-3553

   Dianne Feinstein, (D): (202) 224-3841

Granting retroactive immunity is wrong. It will let corporate law-breakers off the hook. It will hamstring efforts to learn the truth about Bush’s illegal spying program. And it will flip on its head a core principle that has guided our nation since our founding: the belief that no one, no matter how well connected or what office they hold, is above the law.

But in Washington today, the telecom lobbyists have launched a full-court press for retroactive immunity. George Bush and Dick Cheney are doing everything in their power to ensure it passes. And too many Senate Democrats are ready to give the lobbyists and the Bush administration exactly what they want.

Please join me in calling on every Senate Democrat to do everything in their power — including joining Senator Dodd’s efforts to filibuster this legislation — to stop retroactive immunity and stand up for the rule of law. The Constitution should not be for sale at any price.

Thank you for taking action.

John Edwards

January 24, 2008

(full disclosure: I work for the Courage Campaign)

The Senate once again is moving to take up FISA and retroactive immunity for law breaking telecom companies. The vote may come as early as tonight.  The only thing that is really effective at this point are phone calls into Senators offices.  The Courage Campaign, as did CREDO, went to our lists today and asked our members to call Senator Feinstein.

Give her a call right now:

202-224-3841 (Washington, DC)

310-914-7300 (Los Angeles)

415-393-0707 (San Francisco)

619-231-9712 (San Diego)

559-485-7430 (Fresno)

Go to the flip for more information on FISA and Feinstein’s unacceptable amendments.

Robert in Monterey wrote-up a long detailed take-down of Feinstein’s “compromise” amendments.  The first one as Robert notes is not particularly objectionable.  The second one on the other hand…

2. The “compromise” does not provide sufficient safeguards for the public’s rights and for the rule of law.

Even if the “compromise” Feinstein amendment on immunity – kicking it to the FISA court – were viable and could be signed into law, it’s not an approach that civil libertarians endorse. The ACLU has been vocal in their opposition to both the Feinstein and the Specter amendments:

“Unless Congress wholly rejects [the] executive privilege or state secrets claims, there are legal hurdles that could prevent the full hearing of the matter in federal court,” said Tim Sparapani, ACLU senior legislative counsel. “We also oppose having the FISA court making the good faith determination unless outside parties are allowed to argue in front of the secret court, which has never happened before. Otherwise, only one side is represented.”2

FISA is a secret court. Of the many thousands of requests for wiretaps that it has considered over the last 30 years, it has rejected a small handful – perhaps as few as five. This is not the same as a court of law, where the public has the right to examine evidence and file their own claims. FISA courts do not provide for the protection of basic rights. And to allow the FISA courts to determine the legitimacy of telecom actions is to take this crucial decision out of the hands of the courts, therefore undermining the rule of law. Feinstein’s proposal should be rejected on principle alone.

No on the Feinstein amendment and no immunity for law breaking telecom companies.

Senator Boxer has already stated her support for Senator Dodd’s filibuster, however it is a great idea to give her a call thanking her for her support.  Bringing up the Feinstein amendment would be useful:

(202) 224-3553

We need our Senators to know we are paying attention to this bill, as obscure as it sounds to many people.  It is a crucial privacy and constitutional issue and we cannot allow President Bush or these telecom companies to get away with breaking the law.

(We’ve discussed Sen. Feinstein’s relationship with telco immunity quite a bit here, so here’s one more. – promoted by Brian Leubitz)

If you’re like me, you were upset about the thought that the Congress would give telecom companies immunity for participating in a warrantless wiretapping program set up by the Bush Administration.  If you’re from California like me, you were upset that your Senator, Diane Feinstein, would actually have considered supporting such a horrendous idea.  And, if you’re like me, you contacted Senator Feinstein about it.

It seems like it was a long time ago that I wrote to Senator Feinstein, and I frankly expected that she would blow off all of us.  But tonight, I received a response from her via email.

(This is cross-posted at Daily Kos.  People there suggested I post here.  That was a great idea.  I should come here more often.)

Here’s the text of the letter I faxed to her office (yes, I use the fax, because it is much more likely to get attention these days, it can’t easily be filtered like email, and while it exists on paper like a letter, it won’t languish for weeks in the Senate basement waiting to be electrocuted).

Now that I’m looking at the letter, it turns out it was a long time ago.

October 20, 2007

Senator Diane Feinstein

United States Senate

331 Hart Senate Office Building

Washington, DC 20510 Via Facsimile

Re: FISA Telecom Immunity

Dear Senator Feinstein:

It has come to my attention that you are undecided as to whether you will support changes to the Foreign Intelligence Surveillance Act (FISA) which will grant retroactive immunity to telecommunications companies for their having provided information to the government without warrants when such actions were clearly illegal.  I am writing to tell you that in light of what we do know about the program, the fact that you would approve of it at all is bad enough, and the possibility that you would give immunity those who participated in illegal conduct is simply perverse.

Let me summarize the situation as I understand it:

1) On October 13, 2007, The Washington Post reported that based on documents released from the trial of Joseph Nacchio, former CEO of Qwest Communications, that the government had enlisted the telecommunications companies’ assistance with its warrantless wiretapping program (the program) on February 27, 2001, fully six months prior to the attack on the World Trade Center (9/11);

2) While Quest refused, maintaining the program was illegal, other companies did participate;

3) At least one telecommunications company, Verizon, not only participated, but also demanded and received payment of $1,000 each time it provided information pursuant to the program;

4) Verizon was paid for its participation over 700 times;

5) The program, and telecommunications companies’ illegal acts in support of it, failed to prevent 9/11;

6) According to fully corroborated testimony by James Comey before the Senate Judiciary Committee (upon which you sit), on March 11, 2004, although it had previously done so, the Department of Justice (DOJ) refused to affirm the legality of the program, but the President allowed the program to continue, despite DOJ’s refusal;

7) The President, on April 20, 2004, publicly denied such warrantless wiretapping was taking place;

8) In December 2005, the existence of the program was disclosed by The New York Times;

9) In response to the disclosure, the President admitted to the existence of the program, but claimed that it (a) began after 9/11, and (b) prevented an attack on the Library Tower in Los Angeles (which the President called the “Liberty Tower”);

10) Subsequent investigation revealed there was probably no imminent or even credible threat to the Library Tower;

11) In the ensuing months and years, the Administration has claimed that such warrantless wiretapping has been conducted very rarely, and only in extreme circumstances;

12) Subsequent investigation by the FBI’s Inspector General revealed that such a claim is patently false; the FBI has abused its ability to issue National Security Letters and obtain private communications without warrants on hundreds of occasions, and many if not most of those letters were issued in connection with investigations wholly unrelated to terrorism;

13) On August 3, 2007, 60 Senators, including you, voted for the Protect America Act (PAA), which gives the Administration increased ability to engage in warrantless wiretapping;

14) After the PAA became law, several members of Congress indicated the Administration had warned them of an imminent threat of a terrorist attack upon Congress, which bore upon their votes;

15) Subsequent investigation reveals there was no such imminent threat;

16) In the ensuing weeks since the passage of the PAA, the President has claimed that the members of the “Gang of Eight” in Congress had been fully briefed on the warrantless wiretapping program;

17) At least three members of the “Gang of Eight” have indicated that they were not so briefed;

18) The President continues to claim that the warrantless wiretapping program was undertaken in response to 9/11.

To be even more succinct, the warrantless wiretapping was illegal and the telecoms knew it was illegal.  They participated anyway, and even chose to profit from their illegal participation.  And now, you are “undecided” as to whether to give them immunity for their illegal acts.

Let me be clear how I stand on this issue: you took an oath to support and defend the Constitution of the United States; you were not sent to Washington to be an accessory to Constitutional violations.  You swore you would well and faithfully discharge your official duties; you do not do so by rewarding those who would violate the Constitution and FISA with immunity for their illegal conduct.

“Leadership” to me, means you must act with courage and the determination to do what is right.  If the President wishes to pardon the telecom companies for their criminal conduct, he may try to do so, and he will show us all what a shockingly poor excuse for a leader he is.  However, he cannot give the telecom companies immunity from civil liability by himself; he would require accomplices in the House and Senate.  If you give the telecoms that immunity, you are the President’s accomplice, and as far as I am concerned, you will be just as culpable for criminal conduct that destroys our liberty as the President and those companies.

The thought that my United States Senator, who comes from a state which explicitly guarantees its citizens a constitutional right of privacy, would even have to think about whether to give immunity to those who would violate that right, expect to be paid for the privilege, and further expect to suffer no consequence whatsoever, makes me feel physically ill.  Should she actually do so, my sickness will quickly turn into disgust and outrage.

I have had my differences with your positions on issues in the past, but I have largely supported you, and I admire your determination to get to the bottom of the U.S. Attorney scandal (even though I am suspicious of your motivation for doing so).  My support, thin as it is, will evaporate entirely should you support telecom immunity.  Indeed, I will not be indifferent to what I would consider to be the most important issue that you have to deal with in the Senate.  If you cave to the Administration and the telecom industry, you will demonstrate to me you are devoid of the leadership qualities I consider necessary for you to be my Senator, and I will actively seek an alternative.

I hope that you will receive this letter in the spirit in which it is offered.  This issue is simply a “deal breaker” for me.  I urge you, in the strongest terms possible, to oppose immunity for the telecommunications companies who have participated in the warrantless wiretapping program.

Very Truly Yours,

greggp

Here’s her response (and after only THREE MONTHS).

Thank you for writing regarding the Bush Administration’s request for legislation that would provide immunity for telecommunications companies that are alleged to have provided assistance to the National Security Agency after September 11, 2001. I appreciate your thoughts on this topic, and welcome the opportunity to respond.

The legislation to amend the Foreign Intelligence Surveillance Act of 1978 (FISA) was debated in the Senate on December 17, 2007, but further action is postponed until January. That legislation, which was written by the Senate Intelligence Committee and approved by a vote of 13-2, would provide immunity for such companies if they were specifically requested or directed to provide assistance to the government.

The Intelligence Committee’s report on the bill includes declassified text stating that the Executive branch provided letters to electronic communication service providers at regular intervals. These letters all directed or requested assistance and noted that the assistance was authorized by the President and was legal. The Committee’s report can be found at http://intelligence.senate.gov…

I introduced an amendment on the Senate floor that would limit this grant of immunity. Under my amendment, cases against the telecommunications companies would go to the FISA Court for judicial review. The Court would only provide immunity if it finds that the alleged assistance was not provided, that assistance met legal requirements, or that a company had a good faith, reasonable belief that assistance was legal.

I believe that this approach strikes the correct balance: it maintains court review and a judicial determination of whether companies provided assistance that they should have known violated the law.

I have also filed an amendment to restore FISA’s exclusivity, to ensure that no surveillance program can proceed outside the law in the way that the Terrorist Surveillance Program did for more than five years.

Rest assured that I will make every effort to ensure that new FISA legislation will protect the privacy rights of all Americans without restricting the intelligence community’s ability to protect us from attack.

Again, thank you for writing. I hope that you will continue to write on matters of importance to you. Best regards.

Sincerely yours,

Dianne Feinstein

      United States Senator

So is she that clueless that she somehow thinks that I, or anyone else will be satisfied that she has introduced an amendment to LIMIT immunity?  Did I not make myself clear?

Is there someone in California who wrote her a letter that said, “Dear Senator Feinstein, I think it would be great if you can give the telecommunications companies immunity, as long as you limit it”?  If there is, would that person please send me his or her address so I can give that person a dope slap?

crickets chirping

I didn’t think so.  This was all Senator Feinstein’s idiotic idea.  I think she really is that clueless.

Perhaps I just didn’t make myself clear enough in my letter, so I am going to try to get through to Senator Feinstein here.

NO IMMUNITY FOR TELECOMMUNICATIONS COMPANIES.  THEY KNEW WHAT THEY WERE DOING AND THEY KNEW IT WAS ILLEGAL.  THEY ALREADY HAVE IMMUNITY IF THEY COOPERATE WITH A LAWFUL COURT ORDER, AND THEY HAVE BEEN SO PROTECTED FOR 35 YEARS.  NO IMMUNITY! NO IMMUNITY! And, in case she isn’t sure, NO IMMUNITY!

I guess I will just send her the letter again, and again, and again, until she finally gets the message, if that’s possible.

(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.

Dodd was just on C-SPAN saying that the Senate is moving on to other issues beyond the FISA bill.  He just yielded the floor.  He said he was prepared to spend his full 30 hours speaking on the bill but “that will no longer be necessary.”  Sen. Reid just pulled the bill until January.

Reid was taking a lot of heat for this, and in the end perhaps felt that he couldn’t hold out any longer.  I’m guessing that he’ll push for allowing the full Senate to view those legal opinions on warrantless wiretapping as a condition for moving forward on the bill.

This is one of the first good days in a long time, but keep in mind that Reid may have simply reasoned that he wouldn’t have had time to finish all the other crap legislation he has coming down the pike, including giving a no-strings $70 billion in war funding to Bush.  Keep in mind that there are some good shifting of budget priorities in that omnibus bill, including slashing abstinence-only education funding, raising the Consumer Product Safety Commission budget by 28%, and saving a host of social services from the chopping block.  But I guess Reid made the determination that funding Bush’s war was more important than giving telecoms a free pass.

What have we learned?  Filibusters are powerful tools because one Senator can make life a living hell.  The progressive movement has enough allies and enough power to at least slow down this rush to a national surveillance state.  And now Dianne Feinstein’s cards are on the table.  Let’s be clear: she said to the full Senate today that she voted for telecom immunity in her various committees.  This is 100% counter to Art Torres’ contention that she helped “stop” immunity in the Judiciary Committee.  And we saw her “split the baby” compromise to keep any determination of telecom immunity secret.

UPDATE: I should mention that this is just a round, not the whole battle.  The bill will come back up in January, and there will be just as much pressure to immunize the telcos then.  So keep calling those Senators and tell them that you believe in the rule of law.