The Senate voted today to defeat an amendment by Senator Dodd to strip the FISA bill of immunity for telecommunication companies. It was the latest in a series of perceived betrayals by Democratic voters of their leadership, which helped Sen. Jay Rockefeller guarantee immunity for the companies. Sen. Hillary Clinton did not even show up for the vote, one of the most important civil liberties votes of this Congress.
Neither Sen. Clinton nor Sen. Obama were present for the final vote. Yet, the key vote was the immunity question. It was not a close vote, but it was a shocking absence given the criticism leveled at the party elite for their failure to protect civil liberties. Clinton released a statement saying that she both supported changes and opposed them — failing to note that it is hard to support or oppose anything when you do not exercise your vote:
“I believe we need to modernize our surveillance laws and give our nation’s intelligence professionals the tools they need to fight terrorism and to make our country more secure. At the same time, smart, balanced reform must also protect the rights and civil liberties of Americans. In my opinion, the FISA Amendments Act of 2007 falls short of these goals, and for that reason, I oppose the bill.
The fix was in, however, months ago when Senate Majority Leader Harry M. Reid (D-Nev.) picked the Senate Intelligence Committee’s proposal (favoring immunity) to be the legislation to go first to the floor.
While Reid has said that he personally opposes immunity and asked for additional time from the White House to work out a compromise, he made an outcome-determinative decision in selecting the Senate Intelligence Committee to lead on the floor. Due to that procedural choice, it will take 60 votes for opponents to stop immunity. It does not appear that they have the votes, which was obvious when this decision was made by the Senate Democratic leadership.
The Intelligence Committee Chair John D. Rockefeller IV (D-W.Va.) has long supported immunity. It was disclosed last year that Rockefeller knew of both the unlawful surveillance program and the torture program for years. The telecom lobbyists always had the upper hand with some members of the Democratic leadership, which hopes to pass the immunity bill once attention fades in 2008.
Majority Leader Harry Reid has shown lukewarm support for those like Sen. Dodd, Kennedy, and Feingold opposing immunity. As usual, the Democrats on the Senate Intelligence Committee — led by Sen. Rockefeller — supported the White House in killing the pending and future lawsuits. The Democrats on the Judiciary Committee supported the civil liberties side and denied immunity in their bill. Reid initially moved the pro-telecom Intelligence bill to the floor first and did little to assist his colleagues in moving the pro-civil liberties measure.
It was only after a determined campaign from advocates and Democratic colleagues that Reid relented in allowing both bills to go to the floor — but insisted that the Senate Intelligence bill would be the first legislation. This meant that it would have to be amended. Nevertheless, the filibuster tactic by Sen. Dodd paid off. The heat was too intense for Democrats and Reid decided to pull the legislation.
There is no good policy argument for immunity. If the White House is correct and they acted legally, they have nothing to fear. But these Democrats and the White House know that the companies did not act lawfully. Thus, they are struggling to protect the companies for our own courts and our own laws. The disconnect with voters is extraordinary. As with the torture vote, the fix is in on immunity. The only question is timing. This cynical manipulation of the vote reflects a certain contempt for Democratic voters and a major flaw in our political system. While civil liberties advocates like Sen. Feingold exist in the Senate, there remains a general lack of support for these principles over political expedience.While Senator Dodd is promising a fight, he has been clearly undermined by his own leadership. The vote again confirms the disconnect between statements of the Senate leadership to voters and their own actions — or lack of action. The leadership could have killed this immunity provision. Instead, senators will vote against it while ignoring the fact that they could have blocked it.
The loser, once again, is civil liberties.