Feinstein Splits the Baby

by David Dayen [courtesy of Calitics - Front Page]

I just listened to Dianne Feinstein's floor speech on the FISA bill being debated in the Senate today.  As you may know, Sen. Reid ignored 230 years of Senate custom and Chris Dodd's hold to proceed on FISA legislation that included immunity for those telecom companies which illegally acted to help the government spy on Americans without a warrant.  Reid pushed through the motion to proceed, which was agreed to on a 76-10 vote (Feinstein voted to proceed; Boxer voted against it).  Sen. Dodd has vowed to hold a real-deal filibuster, taking the floor and refusing to yield except for questions.  Sens. Feingold and Kennedy have agreed to help him on this, and Sen. Boxer has yielded some of her time to Sen. Dodd so that he can take the floor.

This filibuster has not begun.  And so Sen. Feinstein took the floor.  She offered two amendments to the bill and said she would have a hard time voting for the bill without the amendments' passage.  The first amendment concerned "exclusivity."  She's asking that the FISA court be the exclusive authority for gathering intelligence for electronic surveillance.  That's fine.  Her claim is that if the President's program was always under FISA , we wouldn't have any of the problems we have now, because there would be judicial review.

Next, she said  "I voted for telecom immunity in the committee.  I am not inclined to vote for it without this amendment."  She's trying to say that immunity is actually not what it seems, and the companies are prevented from making their own defense, and that as long as they got a written statement from the Attorney General saying everything they did was OK, then we should let them off the hook.  She's claiming that all of this happened after 9/11 when that's not true (and Sen. Kennedy just pointed that out).  "This Administration, not the companies... made a flawed legal determination."  Oh, these poor telecom officials.  They apparently don't have a staff of lawyers.  "The amendment I will submit would put before the FISA court whether the telecom companies should receive immunity before the law."  She wants an en banc panel of the FISA court to make the determination.  Once again, that would keep the entire case of domestic spying secret.  This would preserve judicial review.  Feinstein admits "I can't say whether (the telecoms) met the iummunity provisions or not."  So she voted for immunity when she didn't know if the law allowed it.  Great.

This is the key point.  Feinstein's default position is to trust the President.  As long as members of the executive branch write on a piece of paper that what the telecom companies did was legal, apparently all existing statutes should be waived.  There is a supercomputer on Folsom Street in San Francisco that is sweeping up practically every communication that goes through AT&T's switcher.  Given all of this, Feinstein's default is to immunize the telecoms.  When she gets pushback, she decides that a secret court should make the determination beyond public view whether or not the telecoms are liable for illegal spying.  A determination of this in public view is all that stands between this country and a surveillance state.

What do you think of the Senator's remarks?