They Did It
So the FISA bill passed. The three amendments which would have modified the telecom immunity provision of the FISA bill were shot down, with none of them receiving more than 42 votes. That last one was the Bingaman amendment which would have stayed immunity - not eliminated it, just delayed it - until the release of an IG report which would have at least begun to explain just what happened here. And shortly after lunch, the Senate voted to immunize the Administration and their telecom partners from civil suit without even knowing what they're immunizing. Not to mention the expanded spying powers in Title I of the bill.
This was a failure and there's no getting around that. Senators Dodd and Feingold put up a great fight but they were simply outnumbered. The movement that built up around this did yeoman work but it simply wasn't enough to overcome the establishment impulse to bury the past, forget about accountability, and advance the surveillance state. Senator Reid is talking about bringing this back up before the sunset provision in 2012, but I wouldn't describe that as likely. We can push him, of course. But the damage will have been done. The Title II provision of immunity sets an extremely dangerous precedent that undermines the rule of law and expands executive power. From now on, the stated law of the land will be that corporations, small businessmen or even individuals must comply with illegal orders from the state if they are given a piece of paper telling them they must. That won't be how the statute is written, but it's undoubtedly the implication.
Just so it's kept somewhere, here are the 28 Senators who voted against the final bill.
Akaka, Biden, Bingaman, Boxer, Brown, Byrd, Cantwell, Cardin, Clinton, Dodd, Dorgan, Durbin, Feingold, Harkin, Kerry, Klobuchar, Lautenburg, Leahy, Levin, Menendez, Murray, Reed, Reid, Sanders, Schumer, Stabenow, Tester, Wyden.
You'll notice Obama not on that list - he kept his word to work to vote to strip immunity, and he kept his word to vote for the final bill (as many have noted in the comments, he absolutely did not keep his word from the primaries to filibuster any bill that had immunity included in it). He joins Baucus, Casey, and Whitehouse as the four who voted for stripping immunity, but then for the final bill. (Come on, Whitehouse!)
Just so we're clear here, here's something from yesterday's final debate that really exemplifies the damaging precedent being set here. This isn't verbatim, but filtered through emptywheel's snark:
Kit Bond: IGs will not determine whether the illegal program was legal or not.
House and Senate Intelligence Committees are all the oversight you need, little boys and girls. Never mind the Courts!
Specter: A member's constitutional duty cannot be delegated to another member. The full body has to act. The question for the Senator with the red tie is, how can 70 members of the US Senate expect to grant retroactive immunity in light of the clear cut rule that we cannot delegate our Constitutional responsibilities.
[Is this the day Haggis returns to US law?!?!?!?!]
Bond: well, SSCI predates me.
Specter: Uh, yeah, I know. I used to chair it, remember?
Specter: SSCI hasn't even all been briefed on the stuff they're supposed to be briefed on. Judge Walker with his 56 page opinion that bears on the telephone case. Have the telecoms had problems with their reputation? Perhaps. They can recover from that.
Specter: Does the Senator from Missora know of any case involving constitutional rights where Congress has stepped in and taken it away from the Courts where there's no other way of getting a judgment on the constitutionality of it?
Mr. Red Tie: What Specter fails to understand, it's not a question of carriers being held liable, what they would do is disclose the most secretive methods used by our intelligence community. It would also expose those companies to tremendous scorn and obliquy and possibly injury to them or their personnel.
Specter: Nope, Bond couldn't come up with one example.
Specter, I'll remind you, wasn't on that above list. He knows that the Congress can't take away the judgment of Constitutionality and yet he voted against stripping the element of the bill which would do so. He's really awesome.
This is what sadly passes for Senatorial responsibility these days.
We lost, but we're not going to forget this. See above.
More from Glenn Greenwald, Lawrence Lessig, and
Jon Eisenberg, a lawyer in the Al-Haramain case which a federal judge just ruled on:
On July 3, Chief Judge Vaughn Walker of the U.S. District Court in California made a ruling particularly worthy of the nation's attention. In Al-Haramain Islamic Foundation Inc. v. Bush, a key case in the epic battle over warrantless spying inside the United States, Judge Walker ruled, effectively, that President George W. Bush is a felon.
Judge Walker held that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA -- which means Bush's warrantless electronic surveillance program was illegal. Whether Bush will ultimately be held accountable for violating federal law with the program remains unclear.
...not unclear anymore.
I'm going to go lie down.
UPDATE: The Dodd, in a statement:
“While I am deeply disappointed by the outcome of today’s vote in the
Senate, I am confident that the Constitutionality of this decision will be challenged in the courts. In the meantime, I will continue to stand up for the rule of law and American civil liberties at every opportunity. Now more than ever, we must all remain vigilant protectors of the Constitution.”
The lawyers here can take a stab at this, but I'm trying to think what kind of case would deliver the standing to offer a ruling on Constitutionality. Then again, I thought the same thing on the Military Commissions Act, and a portion of that has already been thrown out. But hanging civil liberties from the tiny thread that is a possible swing vote in the Supreme Court is dastardly.