Quote of the day: To really fix FISA, "It is time to stop giving in to an administration that does not respect the rule of law," says Russ Feingold

"It is important not to let the excitement of yesterday’s success obscure the really difficult challenge ahead. . . . It is time to stop giving in to an administration that does not respect the rule of law. "
--Sen. Russ Feingold (D-WI), in a TPMCafe guest blog

Perhaps the most under-sung hero of yesterday's triumph--or "temporary success," as he calls it--in the Senate, the talkathon led by Connecticut Sen. Chris Dodd which ended in the shelving of the proposed FISA-replacement legislation until January, is Wisconsin Sen. Russ Feingold, who has been working tirelessly behind the scenes to fix the system of intelligence oversight in a way that enables the collection of useful information while respecting Americans' basic civil liberties.

"We made it clear that we will do everything we can to stop this bad bill from being jammed through," says Senator Feingold. "One issue that was given a good airing yesterday," he adds, "is that the Senate is being asked to legislate in the dark, particularly on the immunity issue."

Above all, he stresses that the battle for a better intelligence-oversight bill is just beginning. He lays out what's wrong with the Senate Intelligence Committee bill that was taken off the table yesterday, and in particular what's wrong with the process that produced it, including a campaign of misrepresentation by the administration: "I was pleased to be part of yesterday’s success, but we have earned only a temporary respite. We must not squander the extra time we’ve been given. We must keep the pressure on and fight back against the administration’s fear-mongering."

Temporary Success in the Senate
By Senator Russ Feingold

As you all know by now, Senate Majority Leader Harry Reid decided last night to pull the deeply flawed Intelligence Committee FISA bill from the floor. He announced that we would return to the bill in January. Senator Chris Dodd did a great job controlling the floor for much of yesterday, insisting on full debate of the motion to proceed after cloture was invoked. We made it clear that we will do everything we can to stop this bad bill from being jammed through. Other Senators, including Ted Kennedy, Barbara Boxer, Ron Wyden, Sherrod Brown, and Ben Cardin, eloquently laid out many of the problems with this bill. And even Senators who supported the bill in the Intelligence Committee, such as Sheldon Whitehouse and Dianne Feinstein, made valuable contributions to the debate.

One issue that was given a good airing yesterday is that the Senate is being asked to legislate in the dark, particularly on the immunity issue.

Only members of the Intelligence and Judiciary Committees have been permitted to learn about the warrantless wiretapping program in enough detail to make an informed decision about whether retroactive immunity is warranted. To his credit, Senator Reid has now called on the White House to make information available to all Senators who are being asked to vote on this crucial question.

But it is important not to let the excitement of yesterday’s success obscure the really difficult challenge ahead. The Senate will once again take up FISA legislation in January. Our efforts need to be focused not only on stripping out the immunity provision, but also on incorporating greater protections for the privacy of innocent Americans. We now have more time to convince the Senate of several key points:

* Perfectly innocent international communications between Americans in the United States and foreigners overseas, whether by phone or email, are now commonplace. Business people talk with clients or colleagues overseas, students email friends they met while studying abroad, families communicate with loved ones living overseas. Under the broad surveillance authorized by the Intelligence Committee bill, their communications can be swept up. We need to do a better job of imposing limits, safeguards and oversight to protect the privacy of those Americans. The Senate Judiciary Committee bill was a good start, although more needs to be done.

* It’s completely unjustified to grant retroactive immunity to telecom companies that allegedly participated in the president’s illegal warrantless wiretapping program. Companies already have immunity from civil liability when they cooperate with a government request for assistance--as long as they receive a court order, or the Attorney General certifies that a court order is not required and all statutory requirements have been met. This argument isn’t about whether companies acted in good faith, it’s about requiring that companies, and the government, follow a law that has been on the books for 30 years.

* If we grant retroactive immunity, the courts will likely be unable to rule on the legality of the NSA wiretapping program. The administration would love that because it would effectively get them off the hook. For those of us who actually respect and believe in three co-equal branches of government as our founders did, immunity would be a disaster.

* The arguments offered by the administration in support of the flawed Intelligence Committee version of the bill are incredibly misleading. I told my colleagues that I’d be happy to talk with them in a classified setting to explain why I am so concerned about these broad new authorities and why some of the examples that have been given by the Attorney General and Director of National Intelligence are simply wrong.

The grassroots involvement on this issue has been nothing short of amazing. I was pleased to be part of yesterday’s success, but we have earned only a temporary respite. We must not squander the extra time we’ve been given. We must keep the pressure on and fight back against the administration’s fear-mongering. The Senate made a mistake when it failed to protect the rights and freedoms of the American people in the Patriot Act in 2001 and again during the reauthorization of that law two years ago. It compounded those mistakes many times over in the so-called Protect America Act. It is time to stop giving in to an administration that does not respect the rule of law.

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