No Telecom Immunity In Senate FISA Bill?

So sez Greg Sargent:

. . . Here's a bit more detail on what happened on the Judiciary Committee today. Sources say Senator Russ Feingold offered an amendment that would have stripped telecom immunity from the bill, but it was defeated. Then Senator Arlen Specter, the ranking GOPer on the committee, offered a "compromise" amendment saying that in these lawsuits the Federal government, and not the telecoms, would be the defendants. But because of a procedural difficulty Specter's amendment wasn't voted on -- and Senator Patrick Leahy, the chair of the committee, essentially went around Specter's amendment and moved to have a vote to report the bill out of committee without any telecom immunity in it. That passed along strictly party lines. And that's where we are.

Let's see the bill first Greg. If Leahy was able to get this done, then HURRAH for Leahy! Personally, I am not understanding this story at all. If Feingold's attempt to REMOVE telecom immunity failed, then what exactly did Leahy get out of Committee? If the bill did NOT contain telecom immunity, then why did Feingold move to have it striked? Sorry Greg, too many holes in the story as reported to make any sense.

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    My understanding (5.00 / 1) (#7)
    by scribe on Thu Nov 15, 2007 at 06:50:36 PM EST
    from what I read on another site (I Think it was TPM, but I'm on an atrociously slow connection and am not disposed to wait ... and wait ... and wait while I look around) is that the following happened:
    Feingold's amendment was voted down (as above)
    Then the Specter compromise came acropper on the shoals of procedure (as above)
    Then Leahy moved to have the bill reported out of committee, which passed (as above)

    So far so good, but here's the rub:

    The bill Leahy successfully moved to have reported out of committee only consisted of Title I of the bill they'd received, which contained most (if not all) of the non-controversial amendments to FISA.  The Bill's Title II, which contains the telco immunities and (I think) the basket warrants, was not a part of the bill they reported out of committee.  In other words, they decided to move the parts they agreed on, and punted on the parts they couldn't agree on, amputating them from the bill without voting on them one way or another.

    That's what I understand to have happened.

    If (5.00 / 1) (#8)
    by Maryb2004 on Thu Nov 15, 2007 at 06:57:02 PM EST
    it also doesn't contain basket warrants, that would be a bonus.  Although it doesn't look like anyone at this point would fight an amendment to put them back in.  Based simply on the fact that no one seems to be mentioning them much these days.

    Some more details over at DKos (5.00 / 1) (#9)
    by kovie on Thu Nov 15, 2007 at 07:09:32 PM EST
    In this diary by MLDB:

    NO Telecom Immunity in Senate FISA Bill (Updated)

    Firedoglake has some play-by-play:

    Here's what I know thus far this evening:

    • The Feingold amendment stripping immunity out of the FISA bill was defeated in an 11-8 vote (UPDATE:  or possibly a 12-7 vote -- conflicting reports on this.).  Democrats voting against it were:  Feinstein, Whitehouse and Kohl.  (No idea as yet on which Republican voted for it, but I'm working on it.)

    • The bill was reported out of the SJC for Title I only -- nothing on Title II/Immunity was reported out.  The final motion to report the bill out of committee without the immunity provisions passed with ten votes.

    • The Specter "compromise" (read:  WH CYA) was never voted on today.

    Update [2007-11-15 19:43:4 by MLDB]:One thing is for sure...Patrick Leahy deserves some love for this:

    Lawmakers on the Senate Judiciary Committee approved 10-to-9 Thursday a bill authorizing the federal government's warrantless wiretapping program without a clause offering immunity to telephone companies that may have cooperated with the program.

    Just minutes before the vote, the committee had voted 11-to-8 in favor of immunity for the phone companies.

    Democratic Sens. Dianne Feinstein, D-Cal., and Sheldon Whitehouse, D-R.I., voted with the nine Republicans on the panel in favor of preserving the immunity clause.

    But in a strange twist that left many wondering what had happened, just minutes after this vote, Committee Chairman Patrick Leahy, D-Vermont, called for a separate vote to approve the bill without the section of the legislation with the immunity provisions.

    The committee approved Leahy's call 10-9, along party lines.

    That "strange twist" was Leahy saying "enough is enough"

    I didn't realize that committee chairs have such powers. Perhaps this is what Reid means by "most likely"--i.e. his way of saying that he's not sure that he accepts what just happened since it appears to partly override the committee's will.

    But if so, then why did Feinstein, Kohl and Whitehouse turn around and vote for the final bill, if it was stripped of immunity (albeit not via Feingold's amendment)?

    Could it be because that amendment (I'm just guessing here) precluded immunity from being re-added on the floor, via another amendment, while the final bill, while not having immunity, did not preclude that from happening?

    Thanks, Kovie. (none / 0) (#13)
    by Edger on Thu Nov 15, 2007 at 07:58:25 PM EST
    My guess is as good as any (5.00 / 1) (#12)
    by cboldt on Thu Nov 15, 2007 at 07:44:08 PM EST
    I think Title I came out "with a report," because Title I was an amended version of Title I as passed from Intelligence.  This does contain the "no basket warrant" amendment.

    I think Title II came out "without a report," i.e., came out the same as it went in.  There was debate and a vote to amend the bill, by stripping Title II lock-stock-and-barrel.  That amendment was rejected.  There not being time to consider Specter's proposed amendment to Title II, there sits Title II, just as it came in, with no adjustments by SJC.  So, out it comes, "without a report" from SJC.  No report needed, because no action taken.

    Why 9 votes against? (none / 0) (#14)
    by cboldt on Thu Nov 15, 2007 at 08:03:13 PM EST
    The 9 votes against sending S.2248 out "without a report on Title II" would prefer to send the bill out "with a favorable report."

    I think what SJC did was basically send Title II out without comment, similar to sending a nominee out without report, or even negatively.  The matter is still on the floor of the Senate.


    Another reason for NAYs (none / 0) (#15)
    by cboldt on Thu Nov 15, 2007 at 09:48:23 PM EST
    Just watching the opening of the meeting, and it's clear to me that some of the Republicans (Kyl, Hatch) are vigorously opposed to the substitute amendment as to Title I, thus explaining the 10-9 vote at the conclusion of the meeting.  That vote representing their sentiment toward the Title I substitute - that is, the 9 NAY votes aren't necessarily based solely on opposition due to the absence of Title II/immunity.
    There are a number of significant and substantial changes between the Intelligence Committee and SJC versions of Title I.  Plus, some opposition to the SJC version of Title I was based on having too little time to review the SJC language.

    Some video (5.00 / 1) (#17)
    by Alien Abductee on Thu Nov 15, 2007 at 11:30:34 PM EST
    on debate of H.R. 3773::

    Speaker Nancy Pelosi: "We have now included certain criteria the government must take into account in considering whether a warrant is required. This will help prevent inappropriate warrantless surveillance and reverse targeting of Americans under the guise of foreign intelligence. The bill restores checks and balances. This is very, very important because, again, it's part of our oath of office to protect the Constitution of the United States. The bill rejects groundless claims of inherent executive authority...

    Rep. Holt: "The RESTORE Act now includes provisions via the manager's amendment that will ensure that it is the courts, not an executive branch political appointee, who decides whether or not the communications of American citizens are to be seized and searched, and that such seizures and searches must be done pursuant to a court order that meets the standard of probable cause

    Procedural question.... (none / 0) (#1)
    by Edger on Thu Nov 15, 2007 at 06:05:33 PM EST
    Greg says:
    ...aides to Senate Majority Leader Harry Reid have confirmed to me that the version of the FISA bill that was just reported out of the Judiciary Committee does not -- repeat, does not -- contain retroactive immunity for the telecom companies.

    And a source close to Reid says that this is "most likely" the version that the Majority Leader will file a motion to proceed on.

    Am I reading this right? The bill is not out of committee yet, and can change in committee before Reid files a motion to proceed? So they have a version that does not contain immunity but there is no confirmation that it is the committee's final version?

    That's not how I read this (none / 0) (#2)
    by kovie on Thu Nov 15, 2007 at 06:26:32 PM EST
    To me, "the FISA bill that was just reported out of the Judiciary Committee" means just that, that it was reported out of committee and onto the majority leader's desk, to decide what to do with. So it's not IN committee anymore, although it could end up being sent back to it, I suppose.

    Is there some special situation in which a bill can be reported out of committee but still be in committee? That doesn't make any sense to me but then so do many congressional rules (still trying to get my arms aroung motions to recommit and dismiss).

    Is there a decent online "Dummies" guide to how all of this works?


    The this means what? (none / 0) (#3)
    by Edger on Thu Nov 15, 2007 at 06:36:16 PM EST
    "most likely" the version that the Majority Leader will file a motion to proceed on.

    I took this to mean (5.00 / 1) (#6)
    by kovie on Thu Nov 15, 2007 at 06:45:13 PM EST
    that the bill that just passed out of the judiciary committee might be sent back to it to be rewritten, passed over and the original intel committee bill considered, sent back to both committees to rewrite in a joint meeting, or some other bill that didn't originate in either committee be considered (I believe that that's possible, even though it's uncommon). Who knows. The real question is why would Reid say this. I have no idea. Maybe he spoke prematurely and without thinking. Maybe there's something more serious going on here. Again, who knows.

    All I do know is that a bill that is far better than the intel committee bill was passed out of the judiciary committee, and according to standard senate procedure, should be the one that will be considered on the floor of the senate.

    I also find it interesting that all 10 Dems (i.e. Feinstein too) AND Specter voted for it, which tells me that something weird might be going on. Maybe there's something about the way that this was done, or some understanding between Reid and certain senators, that would kill the bill as is before it reached the floor?

    If Reid is considering pulling a fast one, then he's going to have a lot of explaining to do. But it's too soon to tell.


    My mistake (none / 0) (#10)
    by kovie on Thu Nov 15, 2007 at 07:18:01 PM EST
    As it appears that Specter did NOT vote on the final bill, which passed 10-9 on purely party-line votes. See my comment below for more details.

    Let me help you (1.00 / 1) (#4)
    by jimakaPPJ on Thu Nov 15, 2007 at 06:38:58 PM EST
    This means that if doesn't contain what the Pres thinks it should he will veto it and the Demos don't have the votes to over ride.

    And? (5.00 / 4) (#5)
    by Big Tent Democrat on Thu Nov 15, 2007 at 06:40:43 PM EST
    Then we revert to the old FISA law.

    Great result.


    Today's SJC meeting will be on CSPAN tonight (none / 0) (#11)
    by kovie on Thu Nov 15, 2007 at 07:21:50 PM EST
    at 9:36pm EST (as of now, as it's subject to change, so check their schedule). It's over 4 hours long. I'm going to record it, as it will be around the same time as the Dem debate.

    This should be interesting.

    Sunset: 4 years, not 6 as in Intel bill (none / 0) (#16)
    by Ben Masel on Thu Nov 15, 2007 at 10:59:03 PM EST
    Might help finding Republican votes against any renewal, with the "Do you want Hillary's AG to have these powers?"