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The Senate leadership has reached agreement with Republicans on how to proceed with the surveillance bill, and they held tough. According to leadership sources, these key Democratic amendments will get a simple majority vote:

  • Striking Immunity (Feingold/Dodd): Strips the provision providing for telco amnesty from the current bill.
  • Sequestration (Feingold): Prohibits the use of illegally obtained information.
  • Bulk collection (Feingold): Requires the government to certify to the FISA Court that it is collecting communications of targets for whom there is a foreign intelligence interest.
  • Reverse targeting (Feingold): Prohibits warrantless reverse targeting by requiring a FISA Court order for surveillance of a foreign person where the "significant purpose" of the collection is to target a U.S. person located in the United States.
  • Substitution (Whitehouse-Specter): Substitutes the government for telcos being sued for their participation in the warrantless wiretapping program, but only if the company is first determined by the FISA Court to have cooperated with the Bush Administration reasonably and in good faith.

The amendments that would require a 60 vote majority are:

  • Minimization (Whitehouse-Rockefeller-Leahy-Schumer): Minimization is the process of weeding out data obtained about U.S. persons and destroying it. This amendment would grant the Foreign Intelligence Surveillance Court the discretionary authority to not only approve minimization rules but to review their implementation.
  • Sunset Provision (Cardin): Shortens the sunset of the FISA Amendments bill from six years to four years.

Additionally, they agreed to accept as part of the base bill Sen. Feingold's amendment that would require that Congress be given timely access to FISA Court pleadings, opinions, and decisions that contain significant interpretations of law, retroactive five years.  The SSCI bill (the current base bill) mandates congressional access going forward, but does not require access to previous documents. There is an additional provision that may be accepted as part of the base bill put forward by Sen. Feinstein that would would reiterate Congress' original intent that FISA be the exclusive means for conducting electronic surveillance and  would reject the President's now discredited argument that the 2002 Authorization for Use of Military Force gave the executive authorization to authorize spying.

The votes are now scheduled to start Monday afternoon. The order of the votes hasn't been determined yet, which is important. For instance, the Feingold/Dodd amendment supercedes the Whitehouse/Specter substitution amendment--if Feingold/Dodd prevails, Whitehouse/Specter is irrelevant. The latter amendment is a hugely watered down version of Feingold/Dodd, but it would at least allow suites to go forward. It's not a compromise that I think Democrats should make.

There are also pending amendments that weren't included in this list that might still go forward, including some others that could potentially be poison pills, causing Bush to veto. Amnesty is their big baby, obviously, as their all-out assault to try to make it into a "liability" issue demonstrates. Here's Cheney yesterday:

CHENEY: People who don’t want to — I guess want to leave open the possibility that the trial lawyers can go after a big company that may have helped. Those companies helped specifically at our request, and they’ve done yeoman duty for the country, and this is the so-called terrorist surveillance program, one of the things it was called earlier. It’s just absolutely essential to know who in the United States is talking to Al-Qaeda. It’s a program that’s been very well managed. We haven’t violated anybody’s civil liberties. It’s in fact a good piece of legislation.

When all else fails, try to divert attention to trial lawyers. And, as emptywheel points out, when did the ACLU and EFF become trial lawyers? What this demonstrates is that they are losing ground on this fight. They weren't maintaining traction by continuing to play the fear card, because their argument that listening in on Aunt Fannie's call to her niece in Paris is keeping us safe is ludicrous to everyone.

If nothing else, the relentless push by the left on telco amnesty has put the Dems in a stronger bargaining position. Maybe if we keep up the pressure, we can put enough into this bill to force a veto, which would mean, in emptywheel's words:

Bush has said he wants FISA plus immunity, but if he vetoed it even if it had immunity in it, he'd be forced to admit that he's asking for much much more than he has publicly admitted. That would allow us to have the debate we should be having right now: how much privacy do Americans give up--indeed, how much privacy have they already given up--in the WOT?

You know the drill. This time, call all of your Senators, including the Republicans, including Smith, Coleman, Sununu, and Snowe. If the Republicans gave in to simple majorities on many of these key amendments, it could mean their caucus is softening. Let's see if we can finally poke a big ol' hole in it.

Originally posted to Daily Kos on Thu Jan 31, 2008 at 07:03 PM PST.

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