ming3.jpgFISA debate continues on the floor of the Senate. Please take the time to make calls or send FAXes to your elected representatives reminding them that their oath of office includes a promise to defend and uphold the Constitution — and that the foundation of American government is the rule of law. You can find contact information here. Will try to liveblog as we go below…

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SEN. SPECTER: This is a continuation of an important debate. While it is indisputable that our duty is to protect Americans. But it is also fundamental that Constitutional protections should be kept in mind at all times — separation of powers must be observed as it is a foundation of our law. This Administration has asserted its power under Art. II, and disregarded the laws under FISA and the Constitutional requirements of the Congress and the Courts to provide oversight. Congress has been ineffective on Congressional oversight, and the Courts have filled the void. A key part is whether there will be jurisdiction stripping of the federal courts on whether or not the telecommunications companies broke the law. Specter says courts should be kept open, while electronic surveillance continues. Says he and Whitehouse are offering an Amendment to that regard — substituting the US gov’t as defendant for the telecoms. [CHS notes: and the immediate state secrets attempt to shut down the litigation would be prevented how, Arlen?]

Says that the SJC has made several improvements on the Intel bill. [CHS notes: so much for that Kit Bond "partisan" BS line, eh?] Says it is important to keep the phone companies in the picture, so can’t support the substitute offered by Sen. Leahy without the Specter/Whitehouse amendment being adopted. If not adopted, will support retroactive immunity, although this isn’t his preferred course. Talking about how the NYTimes informed the Intel committees, not the Administration as required by law. It was more than a surprise, it was a shock. Violation of FISA and the National Security Act of 1947 — President asserts Art. II power, basic constitutional principle, but the determination of that does not reside with the President alone. Goes into a bit of self-back-patting on his efforts that came to naught. Goes into contempt proceedings and other problems with enforcing oversight needs for Congress…and the frustrations he has had with the Bush Administration being disrespectful.

Goes through the history of the court cases holding the Administration’s policies to be overreaches of power. And how the Administration’s hand has to be constantly forced to follow the laws. Talking about the 6/06 oversight attempts at Congressional oversight — and the Administration thumbing its nose at this. When it became known about the activities of the phone companies, he issued subpoenas, and then the Veep contacted members of the GOP on the committee behind Specter’s back to twist arms to protect the Administration’s flank. Asking that the letter Specter sent to Cheney be placed in the record — reading from it now.

FISA provides exclusive legal means of establishing wiretaps and other legal requirements. To ignore that under the assertion of Art. II power as a superceding power? Serious and unwise step to try and close out the supervision of the Courts — executive branch cannot solely determine appropriateness of actions under the Constitution. Costs of determining whether this was legal ought to be borne by the US gov’t, not the phone companies — says his amendment does that. Has noted particulars where the Leahy substitute makes significant improvements — but can’t support it due to a difference on the immunity issue as it stands at this point.

SEN. LEAHY: Appreciates comments from Specter. Notes that his amendment for the SJC does not preclude a discussion on the question of immunity for telecoms — it speaks to what the FISA court should do with regard to the information that comes before it per law. Leahy making the point that amendments would be allowed to be debated if the SJC bill goes through as the base bill vote — meaning those who think certain provisions are better in that bill should vote for it and it can continue to be tweaked later.

[CHS notes: This is a very good time to note that once immunity is given, it cannot be rescinded. That bell cannot be un-rung. And it should never be granted lightly or without appropriate restrictions and provisos in place to protect the public interest, first and foremost.]

Leahy yields to Dodd, with a compliment on his strong voice on the rule of law.

SEN. DODD: Talking about his history with Leahy and Specter in Senate. Says he spoke at some length on FISA amendments and what he thinks is most egregious provision — retroactive immunity. Object to that on very specific grounds — no covering up immense violations of law. Immunity is wrong because it represents a fatal weakening of the rule of law and concentrates power in the executive branch in contravention of the balance of powers. Talks about the fact that this Administration — or any other one, for that matter — should not have the ability to wholesale vaccuum every piece of communication regardless of a particularized need for it. There needs to be a tension between the courts, executive and legislative branch — to consolidate power in one branch is a dangerous concentration of power. When you have oversight among the branches, it strengthens the action of the government, not weakens it.

Terrorist surveillance must remain inside the law, not an exception to it. The Intel bill does not provide the necessary legal safeguards — it is far too weak, and the power that it concentrates in the hands of the executive are far too much. The SJC bill is much better. Both version suthorize the President to conduct overseas surveillance without individual warrants. Both allow President to submit procedures for newer surveillance to the FISA court for review. Only the SJC bill allows for real, meaningful oversight of Congress — what Congress has done for 3 decades with multiple amendments since the 1970s. Protecting the American public from those who would do us harm, while simultaneously protecting the rights of Americans and the rule of law.

The Intel bill fails on 5 counts: (1) safeguards against targeting of Americans — the minimization procedures — are insufficient. Intel version provides almost no deterrent, no consequences, where it is found that targeting procedures and rationale violate the law. Real oversight includes the power to enforce — and the Intel bill only offers the semblence of being able to do so, but with no teeth. Makes an analogy of catching a bank robber and then letting him keep the loot with a promise not to steal again. Immediate emergency authority to president to begin wiretapping in an emergency — everyone agrees that is essential. But what about non-emergency cases? President believes in permanent state of emergency, whether or not that is legal or justified.

(2) Reverse targeting is allowed by Intel bill. This is not legal — breach of 4th Amendment. This is why a prohibition against it must be clear, and Intel bill does not have this.

(3) Intel bill lacks strong exclusivity language. Without this, there is no guarantee that this Administration or any other will not make arguments that it doesn’t apply. See the Gonzales arguments that the AUMF gave authority, which are offensive arguements on their face.

(4) Unlike Leahy Amendment, Intel bill lacks strong protections against "bulk collections." Massive collection dragnet sweeping in even American conversations without probable cause or other rationales. Administration has been collecting e-mails, phone calls and other communications for five years without any oversight.

(5) Intel bill stays in effect until 2013 — through two Presidential administrations. When making such dramatic changes, we ought to err on the side of caution. Leahy’s SJC amendment restricts this to 4 years, giving us an advantage to tweak this as we need to change tactics for more sophisticated shifts in tactics of those we are trying to surveil for national security purposes. We need to review the process more frequently than waiting for 7 to 8 years.

Dodd says he understands that these are difficult issues with which members struggle. Need to look at the long-term implications. We are mere custodians on our rights and the rule of law — all of us admire immensely the work done by various Congresses over the year on the historic issue of the tensions between keeping us safe and protecting our rights. Striking that balance is what is so important. Quotes the Madison warning that the willingness to give up domestic rights is contingent on the threats from abroad, and that we must be conscious of not choosing between rights and security. We become more secure when we protect our rights, not the other way around.

National security decisions and the rule of law should not be argued on symbolism. This ought to cause all of us concern, and should not be done lightly. The Constitution is not a partisan document, it is a document that all of us embrace here. We should have the wisdom and ability to keep ourselves safe without sacrificing the rule of law. My concern is not just about the next year — it is for the years and years and years to follow. We are setting a precedent, and my passion on this issue is because we do not have the right to undermine the rule of law as custodians of the Constitution of the United States.

I leave you with a simple question: what would our Founders think? Why did they craft a system that ensured a balance of powers? If we walk away from that, we walk away from the founding principles of this nation. Urge colleagues to support the SJC/Leahy amendment.

SEN. CHAMBLISS: Oozes to the podium to object to Dodd’s position. Proceeds to question the ability of the FISA court to do anything with specialized knowledge on national security matters. [CHS notes: I'd love to see him try this argument face to face with the judges who handle national security matters on a day-to-day basis. In fact, I'd pay money to watch that unfold at a cocktail party...I'm just saying.]

Quorum call…

SEN. BOND: Back up again. Clearly, the GOP is going for the kill the opposition with boredom approach. blah blah blah the rule of law need not apply, because terrorists scare me blah blah blah [CHS notes: Good lord, I'd love to see what Churchill would do with this idiocy. As a reminder, here is Kung Fu Monkey's awesome summary of the current GOP mindset.] Now yielding to Orrin Hatch. And I need much more coffee…

SEN. HATCH: Allow me to kiss Bond and Rockefeller because, gosh, they are fabu.

I’m going to start a fresh thread momentarily…

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