Today the Senate Judiciary Committee convened a hearing on President Bush's spying bill, which could validate warrantless domestic surveillance, immunize potential crimes by telecommunications companies and preempt related state investigations. The legislation was already approved by the Intelligence Committee, and Harry Reid said he wants a full floor vote "before the end of this year." But the FISA Amendments Act also faces filibuster threats from several Senators, including presidential candidates Dodd, Biden, Obama and Clinton, who oppose letting companies off the hook for their allegedly illegal surveillance of American citizens. Immunity is also a huge issue for Democratic and civil liberties activists – today the ACLU delivered petitions signed by 250,000 voters organized by MoveOn.org, People for the American Way and several liberal blogs.
The big news in today's hearing was Judiciary Chairman Patrick Leahy came out against immunity for the first time. (As recently as yesterday, his spokeswoman told The Nation he had not yet reached a position.) "A retroactive grant of immunity or preemption of state regulators does more than let the carriers off the hook. Immunity is designed to shield this Administration from any accountability for conducting surveillance outside the law," said Leahy. Many legal experts agree that retroactive immunity would fortify the administration's strategy to shirk accountability and maintain secrecy around domestic spying. Yet other Senate Democrats who have criticized Bush's spying still support immunity, including the majority of Democrats on the Intelligence Committee.
Intelligence Chairman Rockefeller has been waging the legislative battle on behalf of Bush. He not only pushed immunity through his committee, but last week he came very close to officially endorsing the administration's radical legal claim that the 2001 authorization of force (AUMF) against Afghanistan also authorized domestic spying – even though the legislation does not contain any reference to surveillance or spying. (Under this theory, administration officials have even cited the AUMF as a basis to invade Iraq and Syria without any congressional approval. Get ready to hear the same theory for attacking Iran.) Rockefeller's legislative report, which can guide judicial interpretation if the bill becomes law, appears to raise the AUMF as a possible basis for Bush's domestic spying. This drew a sharp rebuttal from several members of his committee, including Republican Senators Hagel and Snowe, who used the report's minority section to break down the issue:
We do not believe that the AUMF provided this authorization. We have seen no evidence that Congress intended the AUMF to authorize a widespread effort to collect the content of Americans' phone and email communications, nor does the AUMF refer to the subject. Furthermore, FISA already contained a provision that clearly governed surveillance actions in a wartime situation – a 15-day authorization for warrantless surveillance following a declaration of war. So this was not an uncontemplated question following September 11 and the passage of the AUMF.
Senator Feinstein also endorsed this point, while Senators Feingold and Durbin are expected to continue the fight in the Judiciary Committee. House Democrats have fought harder for accountability, with a bill rejecting immunity, but Republicans have managed to obstruct a floor vote thus far. Jerrold Nadler, Chair of the House Subcommittee on the Constitution, says retroactive immunity is a totally inappropriate response to the "lawless" Bush administration.
The Senate Judiciary Committee could mark up the FISA Amendments Act as early as next Thursday, preparing it for a floor vote. Then the current bill would still face a "hold" or filibuster from several Senators, portending a clash between the Bush-Reid-Rockefeller alliance and the progressive-civil liberties wing of the Democratic Party.