What happened to the House FISA bill?

by Kagro X

The House was scheduled to take up the RESTORE Act today, in an effort to roll back the August FISA debacle. But as predicted last week, the bill fell victim to yet another Republican motion to recommit (see linked story for a backgrounder on the motion).

As TPM Election Central reported earlier, Rep. Eric Cantor (R-VA) announced his intention to offer a motion to recommit the bill with instructions that it be amended "promptly" to include language that nothing in it:

"shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization...from attacking the United States or any United States person."

What does that mean? A couple things.

First, it means that Cantor has devised a vote that some strategists worry will be very tough for Democrats from marginal districts to resist. How, they fret, will these Democrats be able to explain voting no on an "amendment" that supposedly ensures that intelligence operatives won't be tied up in red tape when they need to prevent a terrorist attack?

Second, it means that if enough Democrats sweat this vote and go along with Republicans, the bill gets "recommitted" -- that is, it's sent back to committee.

Third, the choice of the "promptly" language means the bill gets delayed, and can't come to the floor for passage right away. Why is that?

If you love having people stare at you like you're from another planet, read on after the flip and find out. Then you too can be the person nobody will sit next to on day two of the legislative education conference.

There are two basic kinds of motions to recommit: those with instructions and those without. Motions to recommit without instructions send the bill back to committee without telling the committee what to do to fix it. In practice, that means the bill is dead.

Motions to recommit with instructions are themselves of two basic types: those which direct the committee to make certain changes and report (send) the bill back to the House "forthwith" (in practice, meaning immediately, without even leaving the House floor), and those directing the committee to make its changes "promptly" (meaning debate on the bill actually stops, and moves back to the committee.

Most motions to recommit offered these days are the "forthwith" type, which ends up looking to the C-SPAN audience just like any other amendment. It's all taken care of right there on the spot. But a bill recommitted to be reported back "promptly" is not allowed straight back onto the floor. The committees actually have to hold on to them and do the work of fixing the bill separately, which often causes enough delay to kill the bill entirely. And even if it doesn't kill it, it still has go back to the floor, and possibly face yet another motion to recommit it.

But the most egregious part of this particular motion to recommit is that the language Cantor claims to want included in the bill is, depending on how you read it, either redundant (which means recommitting it is a waste of time even if you brought it right back onto the floor) or completely meaningless in any legal sense (which means recommitting it is not just a waste of time, but possibly totally stupid and/or evil).

You see, the bill already has a section outlining procedures for the emergency acquisition of intelligence of this type. So Cantor's motion to recommit is just a gratuitous invocation of Osama bin Laden's scary, scary name, and a way to make Democrats "choose" between moving the bill forward as scheduled or going on record as being "against" tracking down bin Laden.

Of course, what they'd actually be on record against is derailing a bill that allows intelligence operatives to track any terrorist, so that the committee can write Osama bin Laden's name in the bill, and make sure that everyone knows that he's included among the terrorists the bill allows tracking.

But hey, if you vote no, you're "voting against tracking down bin Laden."

Couldn't Democrats just say, "OK, fine. You're an idiot, but if you want bin Laden's name in the bill, you've got it. Let's just move on, amend the bill right here and now, and then pass it?"

Well, they could say so, but remember, Cantor purposely chose the "promptly" language rather than the "forthwith" language. And that means he's intentionally demanding a delay, even if the amendment gets added.

Why?

Because this bill revises the complete capitulation bill passed in August. So the longer it takes to pass this new one, the longer the capitulation bill stays on the books. Cantor is more concerned with blocking the new bill than he is in seeing that it contain bin Laden's name.

Meanwhile, we're now facing pretty much the same situation we had in August. The much better House bill is dead in the water until the Democrats can figure out a way to be sure their Members will stay home on any motion to recommit. And at the same time, the Senate bill -- which is expected to contain the absolutely insane retroactive immunity provisions for the telecom companies that sold out your private phone records (possibly in exchange for fat contracts and preferential review of their merger proposals, but that's another story) -- will likely end up being passed before the House bill, making the Senate bill the "gold standard," so to speak. Republicans will be able to get the Bush Dogs sweating again, maybe telling them they'll offer a motion to recommit next time that adds the immunity provisions so that the two bills match up better and will get signed by the president, without everyone having to delay the next recess to try to come up with a new bill before the August law sunsets.

But however this shakes out down the road, for now, the House bill is on indefinite hold.

Comments

[sojourner]

I just have to ask: What is the down side of all this? I was under the impression that there was a sunset provision in what got passed back in August, or is that incorrect? In other words, why not just let this bill languish if that is what these idiots want so that the last version of the FISA bill goes back into effect. Then, there is no question of granting retroactive immunity to the telecoms...it just won't come up.

What am I missing?

[Kagro X]

The same fear that forced the Congress to adopt the terrible August FISA bill would be brought to bear all over again. The threat was that in the absence of some new reforms, FISA would be hopelessly inadequate to the task of fighting modern terrorism, and the blood of the next attack would be on Democratic hands.

True? False? Doesn't matter. Dems bought it.

They could let the new FISA bill expire and the law revert, but they do want some improvements made. And there's even a small but real danger that Republicans, in combination with just enough Bush Dogs, could discharge a really dangerous bill from committee and pass that over the leadership's objections.

That almost never happens. But until recently losing multiple motions to recommit didn't happen much, either.

[selise]

thanks for the lesson!

just one nit - "The much better House bill" is the holt bill still stuck in committee.

[Nell]

at the same time, the Senate bill -- which is expected to contain the absolutely insane retroactive immunity provisions for the telecom companies ... will likely end up being passed before the House bill, making the Senate bill the "gold standard," so to speak.

Take me now, Lord.

[space]

It's like Nancy Pelosi has money down on how fast I can suffer a stroke.

[Pete Pierce]

This kind of eggregious manuevering is a quintissential page out of the Rove "fear paradigm" playbook, and the very infrastructure that will fuel the Republican primary and general election campaign and the method for achieving everything on the legislative Republican wish list.

They bank on instilling fear into the Democrats that they will be seen as weak against the Bogeyman.

As Kagro asks in his very complete analysis in his Daily Kos article: "How, in a Democratic Congress, did the two Democratic bills fail and the Republican one pass?" Well, of course: Fear, fear and more fear. Just as some people said back in the day "it's the economy stupid" nowadays it's the phony "fear factor."

It absolutely is the August paradigm and Yogi's deja vu all over again.

I appreciate very much Kagro's advice on talking to your Senators and Representatives, but in my experience unless your paying in a lot of money to their campaign funds, you'll be actually talking to them in your dreams.

[Teaeopy]

Republicans in Congress must be pleased with the NYTimes' outing of that North Carolina blogger. Now there's more fuel for the fear blower.

[Pete Pierce]

The way it seems to be shaking out, Kagro, is that the House Bill is dead--as in DNR and CNR--"do not rescucitate and cannot rescucitate." I don't understand why the House Democrats could not just forbid amendments under the rules. I sure believe they could, but they lacked the guts. Again fear of being perceived as weak against terrorism--beat them to the ground as it always does--the Rove strategy working over and over again ad nauseam. I thought with House Rules Committee Resolutions the majority party can limit the debate time and number of amendments that can be introduced on a piece of legislation. What did I miss there? They could, but they diduuuuunnnnn't (J-Lo's pronunciation on the street).

CongressLine">http://www.llrx.com/congress/votesandwhips.htm">CongressLine by Gallerywatch.com: Votes and Whips

SUMMARY">http://www.rules.house.gov/Archives/jcoc2k.htm">SUMMARY OF HEARINGS ON HOUSE FLOOR PROCEDURES

If I understand correctly, the Senate has rolled over and capitulated to Bush. Telco free ride retroactive immunity is a done deal in the Senate.

Senate">http://www.washingtonpost.com/wp-dyn/content/article/2007/10/17/AR2007101702438.html?hpid=topnews">Senate and Bush Agree On Terms of Spying Bill Some Telecom Companies Would Receive Immunity

I suppose then, that leaves a possible Conference Committee massage of this Democratic defeat and defeat for the people of the United States and their rights, and those are fantastic--because whatever happens happens in secret and whatever horse trading goes on in the conference committee is never known by the public, who is theoretically represented there. I wouldn't expect much favorable to come out of a Conference Committee so unless I'm mistaken as Dandy Don used to sing "The Party's Over" and the fat lady has sung on yet another very tragic gutting of your rights by your government and your friendly Telcos.

From the WaPO article:

"Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, called it a "perfect storm" of progressive Democrats who did not think the bill protected basic constitutional rights and of Republicans who took advantage of the lack of unity. "It was too precipitous a process, and it ended up in a train wreck," she said. "It was total meltdown.""

This sure would throw a lot of very hard work--long hours and lots of appellate briefs on the part of the EFF legal staff and others down the tubes.

"Democrats warned yesterday that the Senate intelligence panel's consensus bill must gain the approval of the Senate Judiciary Committee, whose chairman and ranking Republican have said, like their House counterparts, that they are wary of granting immunity to telecommunications companies."

Given Specter and Leahy's past consistent track record of capitulation, I wouldn't hold out much hope for Senate Judiciary committee to fix this horrible outcome I knew would happen.

Also forgive me, but I've been really conditioned now (and I don't see how you can blame me) to extrapolate the phrase "Democrats warned..that they must gain the approval of the Senate Judiciary Committee" with this bunch to mean and they'll do precisely what. Aside from holding up some random Judicial confirmation hearings that pale in comparison to the magnitude and number of those held up when Hatch and Specter were SJ chairmen, I haven't seen the Senate Judiciary committe under Pat Leahy take one single solitary helpful stand on any issue since Leahy became chairman. Not one. Someone please point out one.

I hope someone will show me how Telco Immunity isn't a completely done fait accompli, burying any chance to find out what the hell deals they were bribed with to break the law or any chance for them ever to be held accountable. I find this to be one of the saddest precedents in the history of the United States and it's totally dysfunctional House and Senate.

[bmaz]

I want to puke right about now. Am going to try to hold off until I can find a Senator....

[Jodi]

Look friends.

All we want to do is fight Terrorists. Is that so hard to stomach?

What is that worth to you? To your children? To this great country? To History?

[lespool]

What if the dems were to say; Bin Laden and Al Qaeda are in Pakistan --- NOT Iraq, Iran, OR America. It's not the most profound statement in the world but it's short and to the point, exposing Bush and the republicans as pusillanimous liars spewing nonsense. --- Oh yeah right, in order to protect Americans from the likes of Bin Laden's al Qaeda --- living in Pakistan free and unencumbered, the president and republicans are willing to abrogate our civil rights while threatening to bomb the shock and awe out of Iran.

[Pete Pierce]

Jodi--

What you're correctly saying has been said many times over by serious correspondents in Iraq and Pakistan and Afghanistan, but it falls on deaf ears. It has been said repeatedly very well by a correspondent who was on Jay Leno the other night--Lara Logan--Chief Foregn Correspondent for CBS News. It's been said by the Time and NY Times correspondents in Iraq for years day in and day out but most people are dense and they believe the crap the Republicans spew that you accurately characterize. That's been a terrible problem for the Democratic party.

Lara">http://www.cbsnews.com/stories/2002/12/02/broadcasts/main531421.shtml">Lara Logan Chief Foreign Correspondent CBS News

It's been made very clear that so-called El Qaeda in Iraq is a very small percentage of the insurgency killing Americans, although Bush and the Republicans in Congress and the Senate always try to equate them with the people you correctly refer to who are being protected by agreements between Masharriff and Taliban tribesmen in Pakistan (while the Bush Administration hemorrages billions to him. Despite this everytime a Republican opens their mouth they refer to El Qaeda in Iraq as if they were directly related to bin Ladin's organization and of course it's pure fiction.

This goes back to my original point that most Americans are gullible and uneducated as to the facts (I don't care how many degrees they have or how much income they earn). Bmazz referenced time to get informed. This is not about time to get informed--it's about the will to get informed.

Bmaz--

It's worth it to me and any children and my country to make damn sure this government stops wiretapping and data mining innocent people promiscously and out of control the way it is now doing.

What in the world does that mean? Last time I checked the Bush administration did everything they could to fascilitate 911 with their incompetence and little Bushie was so panic striken when he heard the news that he read from the "Little Goat" in a classroom of small children and then panicked as he flew around the country on his plane while Cheney gave orderes no one listened to in respect to "shooting down" planes.

One of the best accounts in many books I have analyzing how all of the agencies malfunctioned before, during the minutes and hours after 911 is from Chapter One of James Bamford's book and I recommend it to everyone, in particular as an antidote to people like Rudy Guilliani and Republicans who assert "you need us to keep you safe."

A">http://www.amazon.com/Pretext-War-Americas-Intelligence-Agencies/dp/140003034X/ref=sr_1_3/002-9698774-9776857?ie=UTF8&s=books&qid=1192687853&sr=1-3">A Pretext for War: 9/11, Iraq, and the Abuse of America's Intelligence Agencies

Read">http://www.amazon.com/gp/reader/140003034X/ref=sib_fs_top/002-9698774-9776857?ie=UTF8&p=S00J&checkSum=gXjEwKi%2BKkmO7eYHhETrfepAJ6ywLLIEAQeLQLdQ7yM%3D#reader-link">Read the First Chapter for yourself here--it epitomizes Bush Administration incompetence when it matters

Use the arrow on the right to go to the next page.

It's precisely the opposite--they are completely incompetentat defending Americans. They have no coherent plans ever--but they do know how to hemorrhage money and reward their homies.

[NYT]

In other news yesterday.
"Democrats had earlier threatened to hold up the Mukasey hearings until they received more documents from the White House related to congressional investigations of the prosecutor firings and other issues. Those demands were put on hold, but Democrats say they will not abandon their probes. "

I'm sensing a theme here.

Also Bush's approval fell to 24%

[bmaz]

"What is that worth to you? To your children? To this great country? To History?"

These principles are worth more than our individual lives; and certainly more than yours you inane shit stain. If the Constitution is not worth anything to you, what were your alleged family members fighting for. Your trite, simpleton bleatings are a disgrace to their alleged efforts and your country. Begone.

[bmaz]

Pete - I have read Pretext for War; it is excellent. I agree with all you just said. I guess I might add that, if this is what we have to stoop to in order to fight the "terrorists", the "terrorists" have already accomplished their goals and won. Absolutely mind boggling. As far as I can tell, Rockefeller has not even received the full set of legal memos from the Administration. Every report I have seen in the NYT, Washington">http://www.washingtonpost.com/wp-dyn/content/article/2007/10/17/AR2007101702438.html?hpid=topnews">Washington Post, TPM, and everywhere else, is couched in the language "White House made available to the intelligence committee SOME of the documents underlying the administration's post-Sept. 11 warrantless surveillance". How the hell can they enter this illicit agreement without seeing ALL the memos and justifications, not to mention being briefed on exactly what programs they are being applied to and how? Simply stupifying.

[hauksdottir]

A Congressional approval of 11% ought to ring warning bells in the offices of Reid and Pelosi.

Given the legislative tools of impeachment, (secret) holds on bills, and filibuster... among others... why the hell are the Democrats not standing up to Bush and Cheney and the corrupt cronies throughout the entire Administration? I've got earthworms with more backbone than these so-called leaders.

Simply say that no appropriations bills will get out of committee until we get answers (and that includes having Miers's butt in the siege perilous). Nobody will get confirmed until we get documents (and that includes the secret signing statements and executive orders and a ton of emails). Not one cent of "supplemental emergency funding" will go towards continuing an endless war. If they want war, it will have to go into the regular budget. Emergency supplementals are for real emergencies: earthquakes, floods, wildfires, and even those can be budgeted for. Perhaps a half percent rainy day fund to cover foreign and domestic emergency aid.

Of course, the Republicans will yelp. But who cares what they think! (They don't care about us, why should we care about them?) After impeachment and clean-up and indictment, there won't be as many of them to complain.

We'll have better governance after the roadblocks are removed. We'll have better governance after the illegal crimes are fully documented and the perpetrators held accountable. (IMPEACH, CONVICT, and JAIL) We'll have better governance when all parts of government realize that they aren't part of a social club, but of a work force.

And if they don't govern, at least marginally well, they'll be removed.

Otherwise, America will become a police state, ruled by a dictator, with the Bushes and the Clintons trading the throne... until the inevitable revolution, and removal.

Even totalitarian empires only last as long as the people in charge actually govern well enough to cover basic services. Providing for imaginary fears (wiretapping, rendition, walling the borders) while ignoring real needs (healthcare, preserving the environment) is the opposite of good governance.

11% isn't close.

Any worse and Congress will get into negative numbers.

[bmaz]

It would appear that your earthworm's tiny ganglia have better neurological function than "these so-called leader's" brains as well.

[serena1313]

While Iam nothing close to being a legal expert, however, since the following is so broadly stated,

"... nothing 'shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization...from attacking the United States or any United States person.'"

if iam reading that correctly, doesn't it basically negate the purpose of the bill in the first place? Depending on how it is interpreted, the language basically is a loophole that allows the agencies to circumvent the law.

For democrats it is a simple message to convey in simple language: the addendum cancels the checks and balances? Or something to that effect? Just tell the truth. Otherwise the republicans will establish it as something it's not.

No matter what, the republicans will blur the facts, use e_motive language and claim the upper hand no matter how ridiculous or absurd it is. There is no need to cower just because the bogey man's name is mentioned ... Why do the democrats fear that?

Apparently our lawmakers' diminished reasoned logic, rational thinking and common sense are the consequences for succumbing to the fear encompassing Washington. It is impossible to operate with any semblance of unity or consensus under those conditions. Congressional members are making decisions adverse to American traditions and principles. The Founding Fathers are probably sitting upright in their graves!

[drational]

Sojourner:
"What is the down side of all this? I was under the impression that there was a sunset provision in what got passed back in August, or is that incorrect?"

What will happen is emergency 6 month reauthorization of PAA in March, with the same support as existed in August. There are not enough Dems willing to resist the "Old FISA lacks capabilities to eavesdrop on Al Qaeda" meme.

Then we will get it again in September, 2008, just before the elections, and Dems will be pinned with "weak on terror" charges they are unable to resist kowtowing to.

Just as Karl Rove predicted in his departing interview with the WSJ:
"He said he expects Democrats to be divided this fall in the battle over warrantless wiretapping, while the budget battle -- and a series of presidential vetoes -- should help Republicans gain an edge on spending restraint and taxes."

While the S-CHIP veto may backfire, the FISA battle is a winner for repubs.
The only way to get this off the battlefield is to pass permanent legislation now. As we see, Repubs will do everything possible to delay permanent legislation or insert unpalatable amendments (such as TelCo immunity), to prevent resolution and try to keep the "terror weakness" message in the political sphere. Terrorism is the GOPs wedge.

Americans simply do not understand the Bill of Rights, nor are they motivated to protect it.

[Kagro X]

Jodi,

I ask unanimous consent that the Cantor motion be amended so that his proposed changes to the bill can be enacted immediately.

If you want to "fight terrorists," explain the objection to that request.

If the House actually asked for everyone's agreement that Cantor's amendment be adopted immediately, Cantor would object.

That's called "being full of shit."

[katie Jensen]

The dems are very afraid of another terrorist attack before the election and looking to be on the "wrong" side of safety. Why are they so afraid?? We all know why.

Bmaz, I so agree with you about what is worth fighting for. Forgive me, but I thought the folks in Iraq as well as our forefathers were fighting for the very provisions that the republicans keep manuevering around.

Jodi, our democracy is damn near lifeless and dead. Not because of alqueda mind you, but our own emperialistic republican corporate regime.

It's amazing how all that power and control, the constant manipulations and lies just beat you down.

Congress needs energy and they must fight back.

[phred]

Kagro -- time and again we have seen Rethugs masterfully employ parliamentary maneuvers to get their way (whether they were in the majority or minority). Do you have any insight into why the Dems seem to be so inept in using parliamentary tactics to achieve their stated goals? Do you think it is a case of incompetence or that they are just going through the motions for show, while in reality they have no real objection to the Bush agenda?

[Billy Pilgrim]

phred -- the combined years of congressional experience of the Dems must at least equal that of the Rethugs, so accusing Dems of incompetence at employing parliamentary tactics to advance progressive goals does not seem reasonable. That exposes them as actual shills for Bush agenda, posing as opponents only when it's politically convenient.

[Kagro X]

Phred, I think it's a matter of coming down on the "wrong" side of the balancing decision between demanding iron-clad party loyalty from the House Democratic Caucus and being subject to attack as a bunch of hacks and clones just like the Republicans, versus the lighter touch of letting Members "vote their districts" and depart from the leadership when "necessary."

We just don't structure our party like the Republicans do. The biggest dividend of running empty suits for Congress and training them to do nothing more than read the scripts handed out by central casting is that they won't leave you hanging when you need them to stick their necks out on "tough" votes. They're afraid to cross the party because if they don't get their talking points e-mailed to them, they're sunk.

On the Democratic side, everyone is pretty much on their own. We have general talking points too, of course. But everyone's pretty much responsible for their own campaigns and their own elections. We send money, but we don't send campaigns-in-a-box.

As a result, we can beam with pride about the independence of our membership. But we can't get them to do anything.

[semiot]

phred -

"Why?" you ask.

I've come to the conclusion that in the specific case of telecom immunity the Democrats work for the same interests the Republicans do. Whether because they are motivated by craveness or venality, the objective fact is they are enthralled to these corporate interests and their entanglements with the national-security, military-industrial state.

And one election - or two - cannot I fear change that massive indebtedness of the political class to their moneyed masters.