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The FISA fight: Nutroots lose, America wins; Update: Senate passes FISA reform bill

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By Michelle Malkin  •  February 12, 2008 12:51 PM

Scroll down for updates…

I’ve been keeping you up-to-date on the FISA fight in the Senate (see here and here). This morning, a series of votes took place and you’ll be happy to know that the defeatist Dems were defeated.

Carter Wood at the NAM’s ShopFloor blog sums up the votes:

The Senate has just rejected an amendment to S. 2248, the FISA amendments legislation, by Sens. Chris Dodd (D-CT) and Russell Feingold (D-WI) that would have stripped out the retroactive immunity for telecommunication companies.

The vote was 31-67. Roll Call vote here.

This is a clear statement in favor of effective, legal surveillance of suspected terrorists overseas, and an endorsement of good corporate citizens aiding in the protection of Americans. A very important vote…

…UPDATE (12:13 p.m.) Second string of Kos commentary here. Quotes e-mail from Senator Reid’s office: “If, as appears likely, none of the amendments to strike or modify the provisions of the bill concerning retroactive immunity are adopted, we expect Sen. Reid to oppose cloture and oppose final passage of the bill.”

UPDATE (12:34 p.m.): Cloture invoked, 69-29. Senate now breaks.

The Senate Roll Coll votes are here.

Dow Jones dispatch reports:

The U.S. Senate Tuesday voted down an amendment to the Foreign Intelligence Surveillance Act that aimed to strip out immunity for telecommunications companies alleged to have cooperated with the government’s warrantless wiretapping program.

The result of the vote makes it increasingly likely that phone companies will receive retroactive immunity from civil lawsuits over their involvement in the controversial wiretapping program.

The development comes even though Senate Majority Leader Harry Reid, D-Nev., and other senior Democrats have argued in favor of the amendment.

The vote was 67-31 against removing the immunity provision.

The Senate has been divided over the legislation underpinning the warrantless wiretapping program for weeks. At the heart of the debate has been over whether the phone companies should be sheltered from the dozens of lawsuits they potentially face.

The amendment was backed by Sens. Chris Dodd, D-Conn., and Russell Feingold, D-Wis.

In last-minute arguments before the vote, Dodd pointed out that three out of four Congressional committees that had considered the immunity issue had decided against granting retroactive legal cover to the phone companies.

Only the Senate Intelligence Committee’s version of the FISA legislation includes an immunity provision. It is that version which is currently on the Senate floor. Last year, the House approved legislation which made no mention of immunity.

Even if the final Senate bill includes immunity, the matter will have to decided at a meeting between leaders of both houses of Congress to resolve differences over legislation.

The White House has threatened to veto any bill that doesn’t include immunity for the phone companies.

Lawmakers hope to conclude voting on the FISA legislation later Tuesday.

The nutroots are despondent. Profanity-spewing despondent. See here and more here.

***

Ed Morrissey:

Telecom immunity should have never taken this long to approve. The immunity covers companies who received assurances from the Department of Justice that their cooperation broke no laws, and they cooperated to help defend the US from attack. Their reward for trust and assistance should not be billion-dollar class-action lawsuits, which would have been nothing more than a back-door attempt to kneecap intelligence operations that kept this nation safe for more than six years after 9/11.

The House has to put this bill into motion now, and the clock is ticking. The Democrats set up these sunset provisions as a means to pressure the White House, and once again they have had the opposite effect. Faced against bipartisan agreement in the Senate on immunity, expect the House to quietly acquiesce.

John Boeher’s office sent me the following this morning:

It speaks volumes about the national security priorities of congressional Democrats that they have failed to permanently close the terrorist loophole. And it certainly speaks volumes that they have failed to do so because they have bowed to the demands of those on the Left seeking to derail common sense terrorist surveillance laws that would help keep our country safe from attack.

With the deadline coming this Saturday, will Democratic leaders finally work with Republicans to permanently close the terrorist loophole in our nation’s terrorist surveillance laws and extend appropriate liability protections for third parties who have stepped up to the plate in the interest of our national security? Or will the Majority’s allies on the Left demand that Congress backs down from this responsibility once again, kicking the can even farther down the road while the safety of Americans at home and abroad hangs in the balance?

Update 7:30pm Eastern. The Senate passes FISA reform. 68-29, with three not voting (Clinton, Graham, and Obama). Roll here.

Details:

The 68-29 Senate vote Tuesday to update the 1978 Foreign Intelligence Surveillance Act belied the nearly two months of stops and starts and bitter political wrangling that preceded it. The two sides had battled to balance civil liberties with the need to conduct surveillance on potential adversaries.

At issue is the government’s post-9/11 Terrorist Surveillance Program, which circumvented a secret court created 30 years ago to oversee such activities. The court was part of the 1978 Foreign Intelligence Surveillance Act, a law written in response to government abuse of its surveillance authority against Americans.

The surveillance law has been updated repeatedly since then. Congress hastily adopted a FISA modification in August in the face of dire warnings from the White House that changes in telecommunications technology and FISA court rulings were dangerously constraining the government’s ability to intercept terrorist communications.

Shortly after its passage, privacy and civil liberties groups said the new law gave the government unprecedented authority to spy on Americans, particularly those who communicate with foreigners.

That law, already extended once, expires Feb. 16.

Doubtful they can work out the differences in the bills by then, Democrats in both the Senate and the House prepared short-term extensions that would keep the law in effect for several more weeks. Senate Republican leader Mitch McConnell of Kentucky blocked an extension attempt Tuesday. Rep. Lamar Smith of Texas, the senior Republican on the House Judiciary Committee, said Republicans in the House would fight another extension and said Bush would not sign it.

On the way to passage, the Senate rejected by a vote of 67-31 a move to strip away a grant of retroactive legal immunity for the companies. It also rejected two amendments that sought to water down the immunity provision.

One of the amendments, co-sponsored by Republican Arlen Specter of Pennsylvania and Democrat Sheldon Whitehouse of Rhode Island, would have substituted the government for the telecom companies in lawsuits, allowing the court cases to go forward but shifting the cost and burden of defending the program.

The other, pushed by California Democrat Dianne Feinstein, would have given a secret court that oversees government surveillance inside the United States the power to dismiss lawsuits if it found that the companies acted in good faith and on the request of the president or attorney general.

While giving the White House what it wanted on immunity, the Senate also expanded the power of the court to oversee government eavesdropping on Americans. The amendment would give the FISA court the authority to monitor whether the government is complying with procedures designed to protect the privacy of innocent Americans whose telephone or computer communications are captured during surveillance of a foreign target.

The bill would also require FISA court orders to eavesdrop on Americans who are overseas. Under current law, the government can wiretap or search the possessions of anyone outside the United States — even a soldier serving overseas — without court permission if it believes the person may be a foreign agent.

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