Tuesday, January 29, 2008

Monday's FISA votes - The Good, Bad, and the Ugly

All the procedural maneuverings and unintelligible legalese being thrown around the Senate yesterday on just what they should do about the new FISA bill would make anyone's head spin. There were a number of issues that needed to be addressed, so let's get to them one by one.

First, would the Democrats allow the Republicans to force a vote on the FISA bill (they didn't) - with little consitutional protections of privacy AND retroactive immunity for telecom companies - with no real time to debate amendments (like say STRIPPING retroactive immunity)? Second, could the Democrats fend off a cloture vote (they did) forced by the filibuster threat of Chris Dodd? And third, would a 30 day extension of the current "Protect America Act" (which Bush is vowing to veto) win approval (House to vote on this too) - thereby ensuring it won't expire? (the extension lost)

Sleepy yet? Thankfully, we've got Glenn Greenwald - constitutional scholar, blogger, and writer for Salon.com - to walk us through how each of these battles played out, then sort out what each means, and finally, where we all go from here. No one understands this issue better...

Glenn writes:

The vote on the GOP cloture motion -- to ignore all the amendments and proceed to a final vote on the Bush-Rockefeller SIC bill -- has just occurred. The motion has failed, which means (shockingly) that Democrats have successfully mounted a filibuster preventing the vote on this horrible bill from occurring. The vote was 48-45. Republicans missed by a whopping 12 votes to achieve cloture (60 votes needed for cloture). That's a pretty gaping defeat; the Democrats did well to stand together. In one sense, this is an extremely mild victory, to put that generously.

All this really means is that they will now proceed to debate and vote on the pending amendments to the bill, almost certainly defeat all of the meaningfully good ones, approve a couple of amendments which improve the bill in the most marginal ways, and then end up ultimately voting for a bill that contains both telecom immunity and warrantless eavesdropping. Moreover, it seems clear that Senate Republicans deliberately provoked this outcome and were hoping for it, by sabotaging what looked to be imminent Democratic capitulation so that Bush could accuse Democrats tonight of failing to pass a new FISA bill, thus helping their friend Osama. Still, in another sense, this is significant.

Preventing a vote today means that there is more time to work on opposing immunity, including by working on ensuring that the House stays firm behind its relatively decent bill. It also means that the Senate -- for once -- has refused to capitulate to brazen White House pressure tactics, whereby the President demanded that the Senate give the administration everything it wants before the Friday expiration of the PAA. Also, the presidential candidates responded to public pressure by joining in the filibuster, which is encouraging.


The vote on the Motion for Cloture on the 30-day extension (i.e., to proceed to a vote on it) just failed -- 48-45 (again, 60 votes are needed). All Democrats (including Clinton and Obama) voted in favor of the Motion, but no Republicans did -- not a single one. Thus, at least as of today, there will be no 30-day extension of the PAA and it will expire on Friday.


By blocking an extension, Republicans just basically assured that the PAA -- which they spent the last seven months shrilly insisting was crucial if we are going to be Saved from The Terrorists -- will expire on Friday without any new bill in place. Since the House is going out of session after tomorrow, there is no way to get a new bill in place before Friday. The Republicans, at Bush's behest, just knowingly deprived the intelligence community of a tool they have long claimed is so vital. Is the media going to understand and be able to explain what the Republicans just did? Yes, that's a rhetorical question.

Senate Democrats today took a stand for their procedural rights, not against telecom immunity or warrantless eavesdropping. After all, many of the Senate Democrats who voted to filibuster this bill were more than ready last week to vote for that bill, and they will vote for it again soon enough. Moreover, while they were upset that they were denied the right to vote on these amendments, many of them intend to vote against those very same amendments and will ensure that most, if not all of them, fail, so that the bill arrives at the White House in a form acceptable to the Leader.

As indicated, it's preferable for several reasons that the Cloture Motion failed today -- and one can still praise Senate Democrats for refusing to capitulate fully (at least yet) -- but it isn't the case that Senate Democrats collectively took a stand here for anything more substantive than their own institutional customs. Many of the Democratic Senators whom you like today for voting against cloture will be voting soon enough in favor of telecom amnesty and for warrantless eavesdropping. The House is the real hope for stopping these measures.

I hope you got all that! We now look to the House in hopes that they will do a better job than the Senate in articulating - as a body - the need to protect the privacy of Americans, enforce constitutional constraints on an unchecked executive branch, and defend and uphold the rule of law. But, for now, this battle is not lost. For Glenn's entire post click here.

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