Free Pass?

Tom Toles, NYTimes

Today will no doubt be taken up with election news on the Presidential contest called the "Potomac Primary" in Virginia, Maryland & DC, so the timing is perfect for the Senate to quietly close the door on yet another of our privacy rights. As I framed the issue last week, Is that a Cave?: "The big issue is whether telecoms get retroactive immunity for spying on us, after all. This would ensure that we'll never know the truth about how far the Bush Administration went in trampling our constitutional rights. The likelihood is that they win (big surprise)." See also, A Fix for FISA?.

As Matt Browner Hamlin of Hold Fast (who provides an excellent description on the legislative posture on FISA) explains it, FISA Process, Unanimous Consent, & Dodd’s Filibuster:

Tomorrow looks to be the big day for FISA votes in the Senate. Senator Dodd’s amendment to strip retroactive immunity from the underlying SSCI bill will be given a vote - it will need 51 votes to pass. Other amendments pertaining to retroactive immunity will also be given votes - Whitehouse’s substitution amendment and Feinstein’s “good faith” amendment. The bad news is that these amendments are all likely to fail, though Feinstein’s might have the best chances of passing, even with a 60 vote threshold.

Following the votes on all remaining amendments - a number are still out there on Title I of the SSCI bill and would succeed in improving congressional oversight of domestic surveillance - there will be a cloture vote on the bill. If we have any hope to stopping retroactive immunity and a bad Intel bill in the Senate, this is it. Most likely, though, the Republican caucus will be joined by a significant number of conservative Democrats and cloture will pass. After cloture, Senator Dodd will have up to four hours to speak in opposition to the bill. He may share some of that time with Senators Feingold, Leahy, and Kennedy. No more than 30 hours after cloture passes, there will be a vote on final passage of the SSCI bill. That will probably pass and the Senate - thanks in large part to the diligent work of Jay Rockefeller and the decision-making of Harry Reid - will have given George Bush, Dick Cheney, and the big telecom companies what they wanted.

Despite Chris Dodd's best efforts, it looks like the fat lady is about to step up to the podium to sing. Glenn Greenwald of Unclaimed Territory agrees:

The probability is virtually zero that the Democratic-led Senate will do anything here other than what they always do: namely, ensure that enough Democratic Senators join with the unanimous GOP caucus to endorse whatever demands the Bush administration makes of them.

Greenwald describes the crux of the matter at issue:

As the Senate votes on amnesty tomorrow, the only real question is whether telecoms which broke our laws should be accountable in a court of law for their illegal behavior (the way things are supposed to work in a country that lives under the rule of law) or whether Congress, lavishly funded by this industry, will pass a law that has no purpose other than to give them the retroactive license to break our country's laws with impunity.

Either that or the terrorists win, as this Wall Street Journal Editorial would say, Wiretap Showdown:

The Senate takes up wiretapping of foreign terrorists this week, and the stakes couldn't be higher. Not only for the ability of our spooks to eavesdrop on al Qaeda, but also regarding Congressional and judicial intrusion into Presidential war powers. Some damage seems certain, but the issue is how much damage President Bush will accept.

The debate concerns an effort to revise the 1978 Foreign Intelligence Surveillance Act (FISA) to bless spying without a court order on terrorist communications that originate overseas but move through U.S. switching networks. We believe -- and appellate courts have stated -- that the President already has such authority under the Constitution. But the political left claims this is 'illegal' under FISA, and Mr. Bush has agreed to work with Congress on a compromise.

Which side of this controversy you come down on depends on your views of privacy and the unitary executive. As Greenwald observes:

The telecom amnesty debate is controversial but it is not complicated. The Government asked telecoms to break numerous federal laws in exchange for profit. Some telecoms refused to do so and others -- such as AT&T and Verizon -- agreed to break the law for years. Which behavior do we want to encourage and reward -- (a) telecoms which turned down the substantial government contracts to enable warrantless spying on Americans because doing so was illegal, or (b) the telecoms which purposely broke our laws by allowing illegal government spying on Americans? How can that even be a debatable question?

As the Senate votes on amnesty tomorrow, the only real question is whether telecoms which broke our laws should be accountable in a court of law for their illegal behavior (the way things are supposed to work in a country that lives under the rule of law) or whether Congress, lavishly funded by this industry, will pass a law that has no purpose other than to give them the retroactive license to break our country's laws with impunity.

And with all the secrecy that this Administration has imposed upon the operations of government, we'll never know the full scope of the abuses that have occurred.