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 by Gallerywatch.com: Votes and Whips

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 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 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 Pretext for War: 9/11, Iraq, and the Abuse of America's Intelligence Agencies

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 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.

[phred]

Billy and semiot -- I agree with you both. I smell a rat here.

Kagro -- I appreciate the fact that we are willing to let our members vote as they see fit, but that still doesn't explain the ineptitude of the leadership. If they don't have the votes, they don't have to schedule a vote. If it looks like the Rethugs are going to prevail, why don't the Dems ever pull a parliamentary fast one? It appears to me that the leadership consistently fails us, then turns around and says there was nothing they could do. They did that when they were in the minority and they continue to do it now. It's an excuse that no longer rings true.

[DSchumacher]

Glenn Greenwald explains the capitulation nicely, but in a way that brings even more shame and loathing to Congress. Congress doesn't even come up to the standard of a third world aspiring "democracy".

http://www.salon.com/opinion/greenwald/2007/10/18/rockefeller/index.html

Congress, bought and sold by corporate interests. Big damn "wow", right? So who is going to actually call them on this in the devestating manner that Greenwald outlines? Don't expect to hear it on the News Hour.

[pow wow]

I'd suggest the possibility that principled Democrats helped get the RESTORE bill off the floor yesterday, by threatening to vote with Republicans on the motion to recommit, after being deceived by their leadership. There is a quite stunning clip of Rep. Rush Holt yesterday speaking on the House floor under stress and under a very tight time limit, which selise spotted, and got up on YouTube for us. I've excerpted below the most telling of his words yesterday - this man is bucking his leadership to do the right thing for the American people and to defend our Constitution. He deserves our full support in this struggle against the totalitarian-enablers in our Congress:

I would like to point to the one thing that [the RESTORE Act] needs most, that it lacks, which is ironclad language that maintains the fourth amendment's individual warrant requirement when Americans' property or communications are searched and seized by the government.

The RESTORE Act would allow the government to collect the communications of innocent Americans.

[snip]

Yes, I voted ``yes'' in committee to bring this to the floor, with the assurances that we would work to get it better. I regret to say that I've seen no effort to resolve this point. It could be fixed easily to the safety of Americans, because Americans will be safer when agencies have to demonstrate to a court that they know what they are doing. We get better intelligence, just as we get better law enforcement, when you do it by the rules.

In fact, my own leadership I believe would deny me time to speak on this issue to try to strengthen this bill, but for the sake of the security of Americans, I implore the leadership to make these improvements. - Rep. Rush Holt of NJ, 10-17-07

http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2007_record&page=H11648&position=all

http://www.youtube.com/watch?v=l4GIzUFPfhM

[P J Evans]

Talking Points is reporting that Rockefeller has put retroactive immunity into the Senate bill. (We're f*cked, again.) Maybe we can get Dodd to hold it up, since he seems to still have at least some sense of what the Constitution is worth.

Someone remind me what the Democrats are good for, besides being doormats for GOoPers?

[bmaz]

Pow wow - I am STILL trying to figure out how we got the semi-conscious Texas rube Sylvester Reyes as head of House Intel instead of Holt. Fucking amazing.

PJ - Um; I can fully assert that they are good for nuthin. Is that what you meant? Heh heh.

[leveymg]

What is so scary about the Cantor amendment?

I could go for the Cantor language - Congress can not authorize the breaking of existing law, it can only expressly amend Acts already passed. That's carried out in the Definitions sections attached to all Bills. The meaning of ambiguous pharses are also clarified in the little footnotes and legislative histories.

You see, the Cantor language is essentially meaningless because it doesn't specify any Act it might effect. Further, such a line in a Bill doesn't and can't nullify FISA's explicit requirements for warrants, and the penalties attached to warrantless spying on U.S. persons.

Finally, when I read Cantor's insertion, I read:

"... nothing 'shall be construed to prohibit the intelligence community from conducting [lawful] 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.'"

Congress simply can't authorize illegal acts that are inconsistent with previous law without spelling out what existing law they intend to change.

Just move on this Bill, Nancy. You can clarify Cantor's idiotic distraction later.

[orionATL]

KX

this is an excellent post, very informative.

thanks for taking the time to put it together.

i'm writing on the 18th a.m. with the news that the dems have agreed to give the telecos immunity.

this makes me sick.

i keep trying to tell myself that you have to give something to get something in congress,

but that sick feeling just won't go away.

i can only hope court challenges, primary challenges, and 2009 will bring some reversal.

maybe on the issue of proper govt authorization.

i'd love it if rockefeller were to receive a court or an electoral challenge.

[Steinn Sigurdsson]

When these zero content amendments come up, the democrats should abstain, and force as close to a consensus abstention as possible under the party whip.
Then there are no votes against empty rhetoric, and if the republicans want to be on record killing the bill, all by themselves, they can.
The committee can meet and move a new bill, under different floor rules if they want.

[cboldt]

The bill is still "on the deck," as a matter of parliamentary procedure. There was no motion to recommit, or vote on a motion to recommit.

The DEM's in the House are punting FISA to their Senate counterparts, for now. At some point they'll have to take a position on specific statutory language.

[bmaz]

cboldt - This little dog and pony show is right about on our predicted schedule isn't it? It is amazing how predictable the depravity of both leaderships are in Congress.

[P J Evans]

bamz

I think doormats are more useful than the Dems in Congress. (How about we elect some real doormats?)

[P J Evans]

At Talking Points right now:
“Later today Senator Dodd will be sending a letter to Majority Leader Reid informing him that he plans to put a ‘hold’ on a bill that would provide for retroactive amnesty for telecom giants that were complicit in the Bush Administration’s assault on the United States Constitution," Dodd spokesman Hari Sevugan told Election Central. "Senator Dodd said that he would do what he could do to stop this bill, and with this announcement he has again shown that he delivers results.”

Yippee!

[MarkH]

"I've got earthworms with more backbone than these so-called leaders." -- a wise person

The fish is rotting from the head down. We have rotten leadership.

This change of direction occurred after the summer break when Nancy Pelosi ran out of steam (apparently) and the DLC Dems began triangulating with Hillary and the Republicans to take over.

This is the kind of Congress we will have if Hillary is elected. This is what NO LEADERSHIP looks like.

John Edwards -- Leadership

[bmaz]

Well, here you go: Mukasey wholeheartedly endorses the unitary executive in a "time of war" and fully believes that "the president could ignore federal surveillance law if it infringes on his constitutional authority as commander in chief." Who could have predicted that? Now why exactly are Leahy and Schumer so fond of this cluck, and why is his confirmation a fast track done deal? The relentless roll of cravenous crap never ceases.

[seamus]

Senator Chris Dodd has put a "hold" on the FISA bill, and maybe moved himself up in the presidential sweepstakes as well. Certainly got my attention and a donation.
Hopefully this will project the whole stinking mess out into the sunlight where it can be disinfected.

[cboldt]

Dog and pony show is about right. That "We want to know when Osama calls the US" line gets tons of mileage.

I have an idea for a remedy ... not sure it would suit the total privacy freaks (no viewing US/international communications without a warrant), but it's better than what we have now. My proposal would have an "uninterested" party review the contents of international calls obtained without a warrant, and if the call has nothing to do with international terrorism (even if the warrantless interception indicates OTHER criminal conduct), the call contents must be disposed of.

The administration's proposal from 2006 (part of which is the PAA) went the other direction, removing ALL minimization/throwaway requirements as to interceptions.

I'm not sure if it's a message that has any effective use, but my personal belief is that as a matter of government surveillance, we have been in a police state for over a decade. "They" can listen with impunity, without a warrant. The listening can be justified after the fact, if need be, based on the severity of the discovered infraction. There is no such thing as "private" or "secure" communication using a publicly available service such as the internet or telephone.

When Congress tells me I have privacy, I mutter "liar."

[cboldt]

A single senator can't indefinitely "hold" any bill. He can object to a motion to proceed, that objection to be overridden by cloture. Likewise on moving to vote on passage of a bill.

I'm going to wait and see what the Senate bill contains, but my initial impression, based on news reports, is that it's a non-starter. Checking and clearing "past FISA offenses" in a secret proceeding? Who's kidding who here? That crap is "transparent government?"

Okay ... then a secret review by my private accountant should be good enough evidence for the IRS. If my secret accountant says the books are right, no need for receipts.

Re: Mukasey, see Judge Mukasey is Agnostic on Whether Waterboarding is Lawful

[cboldt]

On a totally different subject, action on Libby's appeal has been pushed out a few months, where the CADC granted (on Oct 3) a Joint Motion filed on 9/28 ...

Oct 12, 2007 Dec 11, 2007: Appellant's brief/appendix due

Nov 13, 2007 Feb 11, 2008: Appellee's brief due

Nov 27, 2007 Mar 03, 2008: Appellant's reply brief due

[cboldt]

Typepad eats the <del> and </del> markers. Each of the above date pairs represents an original deadline, and a new (later) deadline. October deadline moved out to a December date, etc.

[P J Evans]

cboldt:
Try strike and /strike next time.

[bmaz]

Depending on what the nature of the "uninterested party" is, I could live with that. I am all for protecting ourselves and watching the "terrorists". There are any number of ways to accomplish what we really need to do to protect ourselves; all I ask is that whatever modality we use be, you know, legal, constitutional and respective, even if not 100% protective, of citizen's rights. There is no rational basis for the crap the Bush Administration has pulled; the chance it has made us incrementally "safer" is wafer thin, however, the cost to our national soul and Constitutional ethos has been beyond immense.

WTF is the deal with the enlarged timelines on the Libby appeal? This was done by joint stipulation? You have got to be kidding me. Every ounce of the heavy lifting on the appellate issues was done by the time Li'l Scoots was sentenced. My 12 year old daughter could put the caption and mailing service certification on the stuff and send it out for delivery at this point. This is fucking shameless.

[Publicus]

It's not hard to "predict" that the Democrats will cave in every time Bush wants something.

They have caved EVERY SINGLE TIME.

[Pete Pierce]

Another great day. The US's money hemorrhage in Pakistan for stability and terror fighting continued to be Bush Katrina successful. But hey, the bombs were over there, not over here right. See what a money hemorrhage will do?

" The United States is continuing to make large payments of roughly $1 billion a year to Pakistan for what it calls reimbursements to the country’s military for conducting counterterrorism efforts along the border with Afghanistan"

Those seem to be having smashing success.

Nice posts, Bmaz. All true and you're left with as much say in the way this country is headed as you would be in Hitler's Germany. Very little difference. The Cavocrats are screwing you every possible way, but they aren't going to tell you anything about it? Surveillance bill markup or information? Fagheddaboutdit--you don't need to know--Mommy and Daddy are taking care of it for you.
I'm afraid Cboldt's reference to "transparent government" is a sentimental memory of something that ceased to exist several years ago.

Cboldt--what is Libby appealling in CADC? His conviction in the trial court that Bush didn't pardon? I thought he got a free ride courtesy of Addington, Cheney and Bushie. Tucker Carlson's Daddy Richard paid his fine and almost all of his legal expenses along with the Committee of Aristocrats who don't like to see White Republicans in the care of the BOP.

The title of this thread was "what happened to the House FISA bill" but it should be changed to "How the Democrats in the House and Senate have utter contempt for you" because there is not one web site or media outlet where you can find out 1) what is being marked up or 2)what has been shown to what committee by Bushco but you can take one thing to the bank.

Teloco Immunity is alive and well in that final law, just as the giddy Democrats embrased Unitary Exceutive/Torture is Good Grandpa Judge Mukusak in yet another day of the Love Fest of the gutless spineless Senate Judiciary Committee and Darth Vader.

Reid and Durban "want to see" legal documentation about warentless surveillance. It'd be interesting to know who they want to see it from(could they be counting on the Tooth Fairy?) because that ain't happening in their life times.

What if anything has been shown to Intelligence or any Committee is never going to be shared with the people who continue to be illegally wiretapped.

Your elected officials are sharing absolutely nothing about the marking up of the bill with you because they have so much overwhelming respect for you. After all, what the hell do you need to know bout this? You've already given up your inability to contest the "no-fly" list if you're one of the 80,000-100,000 on it until it's way too late to do anything about it anyway. If they were to be shown anything, none of it would be shared with you. It's good enough to know that Kumbaya Feinstein is praising Bond and Rockerfeller for their comity isn't it? What more do you need?

Comity as defined by Democrats is to give Bush and the Republicans whatever the hell they want. I don't understand why at the beginning of this Congress there weren't leashes issued to all House and Senate Democrats lap dogs, but they seem to heel perfectly without the leashes anyway.

[hauksdottir]

A Comity of Errors?

That sounds like a proper "group word" for wayward congress-critters! (I'm certain that several of you are familiar with the Game of Venery.)

It is interesting that Dodd made the bold move of (gasp) supporting the Constitution against the assault by the telcos and the apathy of the leadership... and got applause, contributions, and probably a voter or three. The ActBlue pages ought to offer encouragement to the others that if they do their job of governing, we'll help them keep their jobs and perhaps step higher. Where are Obama and Clinton? They are Senators, too! Do they support the law or do they approve of illegal eavesdropping and data-mining? Why do they think that Congress can bottom in the polls without it affecting their chances of staying in politics?

Clinton might prefer a $20,000 check from some PAC... but if I were running, I'd prefer a couple thousand small checks from individuals who'll not only go to the polls, but convince friends and family of my worthiness for the job.

Hopefully, Dodd can delay this FISA bill long enough that even more dirt about "Groundbreaker" and other aspects can come to light.

Meanwhile, I really, really, really hope that we can find someone to run against Feinstein. Otherwise, I might have to vote for a Republican. Or a dog.

[cboldt]

-- Cboldt--what is Libby appealling in CADC? His conviction in the trial court that Bush didn't pardon? --

Basically, yes. The conviction stands as of now. He's a felon and is seeking reversal of the verdict on legal grounds. When President Bush commuted Libby's sentence, I dithered between "he won't appeal mow" and "he'll appeal anyway." He did appeal, but why spend the money? His arguments on appeal suck. It's not like he's going to win, and he has nothing to gain by dragging out the legal process (unlike Senator Craig, who wins by losing a drawn out process).

-- "transparent government" is a sentimental memory of something that ceased to exist several years ago. --

If it ever existed, at any level, local, state or federal. The lack of transparency wouldn't be important if the government was small enough, and had little control and influence.

[cboldt]

There are a slew of news reports out this morning, based on the Senate Intelligence Committee (oxymoron if I ever saw one) passing the proposed FISA amendment bill out on a 13-2 vote last night.

Several of those reports indicate that the House bill will be brought up at some future time, perhaps as early as next week.

Senator Rockefeller is reported to justify amnesty for illegal snooping by saying,

"Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security."

My retort is that to the extent that's a valid justification for illegal snooping, looking retrospectively, it is likewise a valid justification looking forward.

[bmaz]

"Private companies who received legal assurances from the highest levels of government should not be dragged through the courts for their help with national security."

We surely live in a land of amazement. Anybody else here see anything that even remotely indicates that what was going on actually WAS legal, rather than simply the government passes out "legal assurances"? I sure as hell don't, and that is a BIG difference. This confirms exactly what I have been saying all along about the Administration giving the telcos all kinds of legal promises and certifications etc. That is why they are entitled to indemnification, NOT IMMUNITY!

[cboldt]

Some of the news reports give detail that hints at the statutory language that enables the retroactive immunity / amnesty.

The draft bill would direct civil courts to dismiss lawsuits against telecommunications companies if the attorney general certifies that the company rendered assistance between Sept. 11, 2001 and Jan. 17, 2007, in response to a written request authorized by the president, to help detect or prevent an attack on the United States.

Senate Intel Bill Grants Immunity - AP (by Pamela Hess).

The certification would be under seal - state secret.

Congress is being hypocritical if it retains the date references. Just codify as legal, any past present and future surveillance undertaken "in response to a written request authorized by the president, to help detect or prevent an attack on the United States," without regard to the dates. Saves a future amnesty, when the president orders purely domestic communications, "a couple generations of community of interest," and so forth -- to help detect or prevent an attack, of course.

[bmaz]

Who'd a thunk it? I don't see anything in the Senate language that actually indicates that what the Administration was doing actually WAS legal either. You would think that if there was ANY evidence that what the Administration was doing was legal, that the statements of Rockefeller and the Senate proposed statutory justifications would possess some evidence of the evidence.

[phred]

Ahh cboldt, but if our EW is right about her timeline (and she always is) there was pre-Sept. 11th spying going on. A loophole I'm sure that Rockefeller overlooked and will remove during mark-up.

[phred]

bmaz, with our current administration and Congress the word "legal" no longer has any real meaning. Who needs laws (or Congress) when you have signing statements? Our government is down to two branches, and given the courts acquiescence to not being able to review state secrets, we appear to be down to one.

[bmaz]

Yep Phred, and the one we are left with is the most incompetent, corrupt and dangerous of the three. Go figure. Go Sawx! Hope Schilling still has that bloody sock to pull out....

[cboldt]

I hope the Sox spirits are lifted by being back home. They seemed lackluster in interest, or demoralized even, after having their clocks cleaned last Saturday.

[phred]

Yep cboldt, the collapse on Saturday was brutal. Bad enough to lose in extra innings, but to get shellacked, yowza, that hurt. The Sox have been better at home than on the road all year, lets hope Fenway works its magic once again :) Go Sox! And bmaz, I appreciate Schilling taking the team name seriously, but really I think there is a reason they went with Red Sox rather than Bloody Sox back in the day ;)

[radiofreewill]

It looks like everything contentious between the Bush Administration and Congress is being put on 'pause' until the UE Argument is settled in Court.

Mukasey is going to be 'grey' on every single issue that's contested between the UE and the Rule of Law - Torture (waterboarding specifically), warrantless domestic wire-tapping, use of Executive Compartmentalization to Classify information and/or withhold documentation, extending Executive Privilege to cover past employees, etc, etc.

Mukasey will make a fine Law and Order AG, not perfect, but infinitely better than Gonzo. He'll be strong enough for the Department to begin re-building itself.

But, he's not going to 'advance the ball' on the "UE vs Rule of Law" conflict one bit.

Essentially, the BushCo position vis-a-vis Congress is that the 4th Branch - under pre-conditions such as National Emergency and President acting as Commander in Chief during time of War - inflates as an 'Extra-Legal' entity Above the Rule of Law.

That is, Congress can make a Broad case demonstrating that BushCo has 'violated' both the Law and the Spirit of the Rule of Law in numerous situations -

- Publicly declaring Torture is abhorrent, Secretly ordering Torture
- Publicly declaring Spying on Domestic Citizens requires a Warrant, Secretly Spying without a Warrant
- Publicly declaring USAs were fired for performance reasons, Secretly fired in Political Vendetta
- Publicly outing a Covert Spy, Secretly covering it up
- Publicly prosecuting a former Governor, Secretly knowing it was all fraudulent
- plus many, many more...

So, from a Rule of Law perspective - Legal or Illegal? - Congress can put before the Supreme Court a Case File that leaves no doubt that BushCo's actions have been 'Illegal.'

To which BushCo replies - the Constitution empowers the 'instantiation' of the 4th Branch, in certain circumstances, which gives the President the Power to operate Above the Law for the Good of the Nation in a time of Crisis. As Bush, Cheney, Addington and Yoo understand it - the Rule of Law still applies to All Who Aren't 'Read-in' to the 4th Branch, but is Entirely at the President's Discretion for 4th Branch Members.

So, for all of the BushCo 'soldiers' who've acted on the President's Orders and then been determined in a Court of Law to have engaged in Illegal activity, Bush has the Power to 'absolve' them for doing his bidding as the UE. Libby, Gonzo, Miers, Rove, etc were All on a Mission from the UE, and therefore Immune from the Rule of Law. Presto Chango! It looks like Criminals are Going Free.

So, in the simplest configuration that mho can imagine, it all comes down to:

Is the UE Argument valid for the Inflation of the 4th Branch, and if so, is it Extra-Legal - is the 4th Branch Immune from the Rule of Law?

[radiofreewill]

That's why Telco Immunity without first determining Liability and Scope of Damages (the normal Rule of Law process,) is an implicit pre-emptive validation of the UE/4th Branch Argument.

The Telcos were 'read-in' to the 4th Branch [presented with a 'President acting as UE' Order, 'certified' by the AG], so they are Immune from the Rule of Law for acting on the UE's Orders. Therefore, the Rule of Law process is superfluous - just give them the Immunity.

What are the chances that BushCo's Lawyers would then turnaround and 'boot-strap' their UE Argument with, "See, this Telco Immunity clause in the FISA Bill 'shows' the UE's Legitimacy in Congress!"

[phred]

radiofreewill -- but there's the rub, isn't it? Every time it looks like the court might look into these myriad assertions of power, BushCo moots the case. I don't see any of the UE assertions going to court during this administration. After that, who knows?

[cboldt]

-- Every time it looks like the court might look into these myriad assertions of power, BushCo moots the case. --

Tuck the name --Boumediene-- in your memory banks for exactly that "moot the case" proposition.

Hat tip to Neal Katyal (near end of article).

[phred]

Thanks for the link cboldt. I had the pleasure of hearing Katyal and Charles Swift speak last spring. If you ever have a chance to hear them, drop everything and go. They were dynamic, engaging and riveting. You know, I think I'm turning into a lawyer groupie ;)

[cboldt]

It's baaaaack. The rule for consideration of H.R.3773 is H.Res.824, placed on the House calendar yesterday.

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