The Democratic presidential candidate, Sen. Barack Obama (D-IL), has been getting a lot of anger-infused grief from the left-wing activists for saying he’ll vote for H.R. 6304, the FISA Amendments Act, after saying in the primay season he would filibuster against it. Obama now says he’ll vote against the immunity provisions but for final passage.

U.S. News blog: “The largest group on Obama’s own website now goes by the moniker: “Senator Obama–Please Vote NO on Telecom Immunity—Get FISA Right.” The group comprises 18,000-plus Obama-ites. Its membership is mushrooming. Most who join do so in frustration with their candidate for switching positions on the Foreign Intelligence Surveillance Act bill, or FISA.”

• The Nation:  What Obama Should Be Saying About FISA
• Bob Ostertag, The Huffington Post: A Powerful, Easy Way to Tell Obama to Get it Right

And here’s a fun fact: Daniel Ellsberg is opposed to the FISA bill! To the angry left at the Daily Kos, that opposition constitutes a powerful argument.  

Sen. John McCain (R-AZ), the Republican presidential candidate, released a statement last month endorsing the FISA bill.

The Senate just convened and will today take up three amendments and final passage of H.R. 6304, the FISA Amendments Act.  A casual news consumer or reader of the feverblogs could be forgiven in thinking the Senate today was poised to legalize the Administration’s warrantless wiretapping of millions of Americans, the secret eavesdropping in which spies and law-enforcement thugs were listening to YOUR conversations.

For example, the San Francisco Chronicle today editorializes, “Warrantless wiretapping of Americans should outrage Congress into banning the practice. But, in a display of political expediency, the Senate is about to bless it, following a similar cave-in by the House last month.”

This misrepresents the debate. The surveillance programs being revised under the FISA Amendments Act are foreign surveillance programs, involving terrorist threats developing in foreign countries, with electronic communications (e-mails, phone calls) that may merely be routed through a U.S.-based nexus, or which involved communications beginning overseas coming into the United States (but not necessarily to a U.S. citizen).

So it is possible that the communications of American citizens were included in the presidentially authorized surveillance program, but it was NOT a program of widespread warrantless domestic wiretapping, as the opponents would have the public believe.

And let’s remember the context — not just in 2001, but today, as well. From the Senate Intelligence Committee’s report on S. 2248, the section, “The President’s program”:

In December 2005, the American people, and almost all of the Congress, learned for the first time that, shortly after September 11, 2001, President Bush had authorized the NSA to conduct surveillance activities in the United States to protect the country from future terrorist attacks. The NSA program was described by the Department of Justice in January 2006 as `an early warning system . . . to detect and prevent the next terrorist attack . . . a program with a military nature that requires speed and agility.’

After the attacks of September 11, 2001, Congress passed a joint resolution on September 14, 2001, declaring that the attacks `continue to pose an unusual and extraordinary threat’ to the country and calling on the President `to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any further acts of international terrorism against the United States . . . .’. Authorization for Use of Military Force, Pub. L. No. 107-40, section 2(a), 115 Stat. 224 (2001). The President also declared a national emergency on September 14, 2001, stating that there was `a continuing and immediate threat of further attacks on the United States.’ The intelligence community assessed in October 2001 that additional waves of al Qaeda attacks were imminent. This assessment was manifested in the mobilization of 35,000 reservists and National Guard troops for homeland defense; actions by the Attorney General putting all federal and state law enforcement officials and the U.S. business community on the `highest level of alert’; and the formal announcement of the FBI that the Government had reason to believe that new terrorist attacks might be launched in the United States over the next several days. It was during this period that the President first authorized the program.

Although the intelligence community assessed the threat to be imminent in October 2001, its concerns have persisted to the present day. The United Kingdom aviation plot of August 2006 and the bombing plots in Germany in 2007 are only two of the most recent examples of the continuing threat.

The NSA’s activities were reauthorized by the President on a periodic basis through January 2007. Over time, the program was modified to reflect new contingencies. Attorneys from the Office of Legal Counsel of the Department of Justice generated legal opinions throughout the duration of the program.

The critics of that surveillance seek to delegitimize the response to the terrorist threat against Americans. To them, the Administration and Congress were not justified in their response to the plotting of bombings and mass murders and attacks against the government and citizenry. Not just the programs, but the policies, were illegitimate, wrong.

One tactic in the effort to defeat these policies was the filing of civil lawsuits seeking billions of dollars against telecommunications companies that assisted in this surveillance, companies that followed legal orders from the federal government. Privacy absolutists like the ACLU and Electronic Frontier Foundation and anti-Administration activists went to the courts to achieve their policy ends.

In response, the legislation includes limited retroactive immunity for the telecoms, while allowing continued litigation against the government.

Today, the Senate is expected to reject three amendments that would kill the bill by attacking the immunity provisions — Senator Bond summarizes in this release – and then vote to pass the bill. (We note the legislation now includes specific protections for U.S. citizens overseas or whose communications might be targeted, so warrants are now required. Opponents don’t want those protections?)

Wild claims and angry denunciations of the police state will be the currency of the day, but passage of the bill acknowledges the real threats our country faces from terrorists, respects the value of private-sector cooperation, and adds further legal protections for U.S. citizens.

The alternative is degraded intelligence and a less safe country.

Senate leadership announced yesterday that there will be no roll call votes today to accommodate Senators attending the memorial services for Sen. Jesse Helms today. So, although there will be debate on H.R. 6304, the FISA Amendments Act, no vote on amendments or final passage. Votes will begin 11:15 a.m. Wednesday.

We summarized the three amendments up for debate in this post yesterday. Today, the White House issued a fact sheet on the legislation and the amendments with a clear statement: “If Congress were to include any amendment that eliminates or delays liability protection for those that assisted the Government in the aftermath of 9/11, the President would veto this legislation,”

The entire White House document, distributed via e-mail, is here. It includes:

Retroactive Liability Protection Is The Appropriate And Fair Result

Liability protection is a fair and just result and is necessary to ensure the continued assistance of the private sector. The Senate Intelligence Committee already conducted an extensive study of the issue and determined that providers had acted in response to written requests or directives stating that the activities had been authorized by the President and had been determined to be lawful. This Committee, chaired by Sen. Rockefeller (D-WV), carefully studied the issue and found that “without retroactive immunity, the private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation.”

And for the Senate Intelligence Committee’s discussion of immunity, go to the original committee report for S. 2248, here. The bill passed out of the Senate Intelligence Comittee, 13-2; the House bill, with its revised immunity provisions, passed the House 293-129.

The Senate is scheduled to consider H.R. 6304, the FISA Amendments Act, Tuesday with three amendments subject to debate. If any of the three passes the entire bill stops and national security is the loser. So the commentary and debate and protest represent statements of principle or raising the flag or playing to the (very angry, activist) base or …

Again, the key issue is whether private parties — trial lawyers, privacy absolutists, and Administration opponents — should be able to sue the telecom companies in an effort to undermine the Administration’s national security and intelligence-gathering process.

Sens. Chris Dodd (D-CT), Russell Feingold (D-WI) and Patrick Leahy (D-VT) have an amendment that would strip the provisions that allow a federal district court to grant immunity to those telecom companies that assisted in the federal government’s interception of foreign communications. In February, when Sen. Dodd proposed the immunity-stripping amendment to S. 2248, it failed by a vote of 31-67. Passage this time will require 50 votes.

Sen. Dodd raises another protest in an op-ed today, “Opponents of Retroactive Immunity Live To Fight Another Day,” at the Huffington Post, the daily courier of the outraged critics of Administration and telecoms. He comments, “I’m under no illusion that we will be able to keep this bill from the president’s desk forever; two weeks ago, I was disappointed that we could only muster 15 votes out of the necessary 41 to block consideration of FISA.”

Sen. Arlen Specter (R-PA) has an amendment that would require the courts first to rule on the constitutionality of the government’s instructions before it granted immunity and dismissed the civil lawsuits against the telephone companies. The Specter amendment would require 60 votes.

And Sen. Bingaman (D-NM) has an amendment that would move up the schedule for an intelligence Inspector General’s report on the legality of the surveillance to BEFORE the court dismisses the lawsuits (assuming that the court do so).  In an interview in the Albuquerque Journal, the Senator said, “I’m not too optimistic they will adopt it. There are some on the Democratic side who are going to oppose my amendment, too.”

Senator Specter just finished speaking on his amendment, and he says, “I’m prepared to stomach the bill if i must,” but ….

A good review of the state of play is in The National Journal, which includes Sen. Jay Rockefeller’s prediction of a final passage with 70-plus votes.

The lead editorial in today’s Washington Post, “FISA Follies,” has a good description of the disputes and delays that have so far prevented passage of renewed authority to intercept foreign electronic communications.  It’s a case of “Internet tail wagging the legislative dog.”

The angry activist, online left — “netroots” — has stirred up a cyberstorm of reaction against the legislation, H.R. 6304, the FISA Amendments Act, in great part because the bill would provide effective immunity for the telecom companies that assisted the Administration with surveillance in the wake of the 9/11 terrorist attacks. The companies were abiding what they saw as lawful orders, but more than 40 civil lawsuits resulted.

The Post praises Sen. Barack Obama for changing his mind and supporting the legislation after months of denunciations; his reversal has elicited protest from his absolutist supporters. (Shouldn’t Sen. McCain warrant an editorial mention for getting the issue right from the beginning?)

As for immunity, the Post (our emphasis):

[The] fact remains that no one can claim with certainty that his or her communications were monitored. The likelihood of prevailing — or even getting very far — with such lawsuits is low. The litigation seems aimed as much at using the tools of discovery to dislodge information about what the administration actually did as it is at redressing unknown injuries. The telecommunications companies complied with a government request after being assured, in writing, that the activities had been authorized by the president and deemed lawful by the attorney general. Punishing them by forcing them to endure the cost and hassle of lawsuits would be counterproductive to securing such cooperation in the future, while offering little prospect of a useful outcome.

More fundamentally, even if we are wrong and retroactive immunity is not warranted, that is the least — not the most — important aspect of the complex FISA debate. The more important concern is to ensure that there are adequate protections in place, including vigilant court oversight, to give intelligence agencies the flexibility they need to intercept international communications without infringing on the privacy rights of Americans.

Given overwhelming House passage (293-129) and the Senate cloture vote (80-15), Senate opponents are now limited to restating their arguments against the bill, again, yet another time, repeatedly, while the Internet activists e-mail. But the delays can’t go on forever: August 1 marks the end of existing surveillance authority in many cases. 

The Senate is leaving town today with action still pending on H.R. 6304, the FISA Amendments Act, but a vote planned upon returning after Fourth of July recess. Sen. Dodd (D-CT) says he will propose an amendment to strip out legal immunity for telecom companies. For the explanation of the bill’s provisions, see this floor speech yesterday from Sen. Jay Rockefeller (D-WV), chairman of the Senate Intelligence Committee.

This AP story covers the procedural maneuvering that slowed the bill’s consideration. The delay allows more invoking of the the Declaration of Independence before the vote.

UPDATE (11:40 a.m.): CQ reports the Senate will take up the bill July 8th. Attorney General Mukasey and Director of National Intelligence McConnell sent a letter to Majority Leader Reid yesterday outlining the Administration’s opposition to various amendments — including removal of immunity — saying they would recommend a veto if the current bill’s provisions are undermined.

Andy McCarthy of the Foundation for the Defense of Democracies, one of the few observers to write consisently about the FISA legislation, surveillance and immunity for the telecoms, says H.R. 6304 will pass with the immunity provisions, but the damage has been done. From The Corner:

A litigation climate has been created in which the telecommunications industry would never again comply with a presidential request for warrantless monitoring. The Obama Left, the ACLU, and the Democrats’ trial lawyer benefactors are bent out of shape because the telecoms will receive retroactive immunity this time, so billions in potential liability will vanish (at great savings for Americans to whom the cost would have been passed along). But ultimately, they’ve succeeded in making it highly, highly unlikely a president will be able to carry out warrantless surveillance in the future.

Actually, the Obama Left isn’t that happy with Sen. Obama on FISA.

Sens. Saxby Chamblis (R-GA) and Orrin Hatch (R-UT) had very good floor statements yesterday on the FISA modernization legislation (Congressional Record text here), with Hatch especially clarifying the legal and constitutional differences between warrantless searches and unreasonable search and seizure. Hatch also punched holes in the favorite canard opponents, that the bill excuses a vast sweeping, warrantless surveillance of Americans’ phone calls or e-mails. It’s foreign surveillance, Hatch explains. From S6125:

Domestic spying may sound catchy and mysterious, but it is a completely inaccurate, even misleading, way to describe the TSP terrorist surveillance or FISA modernization. Why don’t we describe them as international spying, which is what they really are? Isn’t that a more accurate description? But I imagine international spying wouldn’t raise the same level of fear and distrust in our Government that some on the left try to foster.

UPDATE: (11 a.m.): White House fact sheet on retroactive immunity.

By a 80-15 vote, the Senate this evening voted to invoke cloture on the motion to proceed to H.R. 6304, the FISA Amendments Act. The threatened filibuster, or at least uproar, turned into a several speeches critical of the legislation.  AP story here.

The 15 opponents were all Democrats. Absent were McCain, Byrd, Kennedy, Clinton, Obama. Sen. Obama commented on the bill in a question period with the media. Not much in the way of trying to remove the telecom immunity.

More from Politico on House Majority Leader Steny Hoyer getting credit — and grief — for making a compromise possible on the FISA legislation, H.R. 6304. Count us among those who say credit is deserved, not for the partisan smarts (which there were) but for the fact the legislation vitiates the punitive, politically motivated lawsuits against the private sector, i.e., the telecommunications companies.

Sen. Russ Feingold (D-Wis.) called the House bill a “capitulation.” Salon.com’s Glenn Greenwald called Hoyer an “evil, craven enabler of the Bush administration.” Firedoglake.com blogger Jane Hamsher — delivering the lowest possible blow from the liberal blogosphere — declared Hoyer “the new Joe Lieberman.”Hoyer knew it was coming, and he persevered anyway. That he did so speaks volumes about who he is: a master of cloakroom politics who can use his friendships across the aisle to strike deals, even if others demand that his party hew closer to the positions that put it in power in 2006.

CQ Politics reports that Senate votes will start Wednesday (following Sen. Reid’s filing of a cloture motion), and anti-surveillance Senators will oppose the measure but efforts to block it will likely fail. The Green Bay Press-Gazette reports that Sen. Russ Feingold (D-WI) will not attempt a filibuster against the bill, satisfied with making the case against it on the floor.

For a summary of the anti-arguments from the left (this time not so angry), try this post by mcjoan at The Daily Kos. For angry commentary, go here.

Indications are that Senate Majority Leader Reid will file cloture on H.R. 6304, the FISA Amendments Act, with a Senate vote to occur Wednesday. A debate has emerged hot and furious among the political left about the decision of Sen. Barack Obama to support the legislation, although he says he’ll try to have the telecom immunity provision removed. Hotline’s Blogometer has the rundown of the reaction to what the Washington Post calls “his most substantive break with the Democratic Party’s base since becoming the presumptive nominee.” Moveon.org, the cash-flush lefty outfit, is urging supporters to contact Obama to urge him to lead a filibuster.

More uproar from the Maine Civil Liberties Union, attacking telephone companies.

And The Washington Times had a good editorial restating the case for telecom immunity in the FISA bill, “A good deal on FISA.”

The most important benefit of the agreement is that it grants retroactive liability protection to telecommunications companies who responded to the federal government’s request for emergency help after September 11. The companies did their patriotic duty: making sure that the U.S. intelligence agencies were able to monitor the telephone calls and faxes of known and suspected terrorists – at a time when there was good reason to worry about a second wave of attacks. However, for doing the right thing, the companies were hit with approximately 40 lawsuits pushed by the ACLU, the Electronic Frontier Foundation and trial-lawyer activists. These lawsuits exposed the telecoms to the possibility of paying billions in damages for helping the government conduct “illegal” warrantless surveillance. But two centuries of American case law demonstrate that the warrant requirement has never been absolute. To cite but one of many exceptions, the president has long been understood to have the “inherent authority” to conduct warrantless searches to obtain foreign intelligence information. This has been recognized by federal appeals courts and was acknowledged in 2002 by the Foreign Intelligence Surveillance Court of Review.

In this context, it would be difficult to imagine a more pernicious message to send to these companies – forcing them to choose between their fiduciary duty to stockholders on the one hand and acting lawfully to help protect their fellow citizens from terrorist attack on the other.