The FISA Debate Begins By Senator Russ Feingold Talking Points Memo December 17, 2007 This morning, the Senate starts debating legislation to expand the government's surveillance powers. Unfortunately, the bill we are going to be considering is the one reported out by the Senate Intelligence Committee in October, S. 2248. It did not have to be this way. Thirteen Senators joined me last week in asking the Majority Leader to instead bring up a bill that includes the changes approved by the Judiciary Committee last month. That bill, while not perfect by any means, was the product of an open process and heeded the advice of many experts and advocates to provide greater protection for the international communications of innocent Americans. And, unlike the Intelligence Committee bill, the Judiciary bill does not provide automatic, retroactive immunity for companies alleged to have cooperated with the administration's illegal warrantless wiretapping program. By choosing the Intelligence Committee bill over the Judiciary product, Senator Reid has made things much tougher for those of us who think the courts -- not Congress -- should decide whether the companies deserve immunity. He's also made it an uphill struggle of those of us who want more court oversight of the broad new surveillance powers included in the bill. The first vote will come around noon, on the motion to invoke cloture (or limit debate) on the motion to proceed to (or consider) S. 2248. I expect to speak against the motion before the vote, and will post a link to my remarks after I make them. We have a big fight on our hands, and unfortunately, the deck is now stacked against us. Instead of being able to defend improvements that were made in the Judiciary Committee, we are going to have to start all over again to try to salvage the good work that was done to improve the bill. This includes adding tougher court oversight and greater protection for the privacy of innocent Americans, and by stripping out the retroactive immunity provision. A vote on the amendment to strike immunity, which Senator Dodd and I will offer, could come fairly soon. We will be pointing out that under current law, companies already get immunity for cooperating with government requests for information -- as long as the requests follow requirements that are clearly laid out in the law. If companies didn't follow this law, and cooperated with illegitimate requests for sensitive information, then we should not hand them a "get out of jail free" card after the fact. Judges should be the ones to make this determination -- and to rule on the legality of the warrantless program. It's now up to the Senate to stand up for the rule of law and against the misinformation and fear tactics that the administration always rolls out on the surveillance issue. That means Democrats will have to finally stand up to the administration on national security issues. Strong votes in favor of our efforts to improve the bill, even if they don’t succeed, will strengthen our hand as a final bill is negotiated with the House, which passed a much better bill than S. 2248 last month. I appreciate all of the encouragement and support I have received from commentators and concerned citizens in the blogosphere on this issue. Now it’s crunch time. We can provide the government all the tools it needs to fight terrorism and protect the rights and freedoms that are guaranteed by the Constitution. My work this week is focused on that goal. I hope to provide periodic updates, from my perspective, on where things are headed this week. I look forward to hearing from you as the debate develops.