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 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.

A huge margin of victory on H.R. 6304, the FISA Amendments Act. We’ll post the roll call when it becomes available.

UPDATE: Here’s the roll call.

Majority Leader Hoyer’s floor statement.

Republican Leader Boehner’s statement.

UPDATE (4:24 p.m.): Sen. Barack Obama endorses the legislation. The angry left is disappointed. Or angry.

The House intends to vote on H.R. 6304, the FISA Amendments Act, by 2 p.m. today, the Majority Leader’s office reports.

The Washington Post has entirely sensible editorial on the issue, “A Better Surveillance Law,” which details the changes in the House bill from the Senate version, S. 2248, demonstrating that, contrary to screams from the activist left, the new legislation is an actual compromise. As for the telecom immunity issue, the Post writes:

The bill also provides appropriate protections from civil lawsuits for telecommunications companies and gives these companies access to the FISA court to challenge requests they deem improper.

Striking the balance between liberties and security is never easy, and the new FISA bill is not perfect. But it is a vast improvement over the original law and over the earlier, rushed attempts to revise that law. It also provides some welcome evidence that congressional leaders remain capable of achieving delicate compromise in the national interest.

The Post’s page one story is the typical quasi-analysis that jumps immediately to the partisan political implications and questions about President Bush’s relevance. Meanwhile, in the blogosphere, House Majority Leader Steny Hoyer is the chief target of bile, with capitulation and cave-in being popular accusations.

The Wall Street Journal, on the other hand, is editorially of a mixed mind about the compromise. Much was sacrificed, the editors write in “The Intelligence Deal,” as the courts have been thrust into the middle of the war-making powers of the executive. Still, a positive:

On the bright side, the deal gives crucial immunity to the telecom companies that in good faith assisted this surveillance after 9/11. A reality of this Internet era is that the feds need these private companies to monitor terrorists; our spies can’t merely bug the phones of Russian spies like they could during the Cold War. The left understands this and has hit the companies with some 40 lawsuits in an attempt to shut down the surveillance by the backdoor, without a political debate that voters might understand.

The telecom (and other) companies have thus made it clear that they can’t afford to cooperate any longer without immunity. And so the deal will let the companies escape the lawsuits, for past and future cooperation, if they present to a federal judge a certification from the Attorney General that they are helping at federal request. The eavesdropping orders that expire in August can thus be renewed, so our security services won’t have to “go dark” over the global antiterror battlefield.

Chairman Jay Rockefeller (D-WV) of the Senate Intelligence Committee, Ranking Member Kit Bond (R-MO), House Majority Leader Steny Hoyer (D-MD), and Minority Whip Roy Blunt (R-MO) have released a joint statement on legislation to reauthorize effective electronic intelligence, “Bipartisan FISA Compromise Reached.”

They joined together in this: “The FISA Amendments Act, H.R. 6304, will increase the nation’s security by strengthening the ability of the intelligence community to conduct lawful surveillance of terrorists, as well as protect constitutional rights by requiring warrants before the government can surveil any American.”

The text of the FISA Amendments Act, is here.

We’ve read Section 201 detailing the legal protections for telecommunications companies that complied with government requests to assist in electronic surveillance of foreign communications after the attacks of September 11, 2001. The judicial oversight will serve to confirm that the telecoms operated in good faith, responsibly and in compliance with lawful orders.

Majority Leader Hoyer is taking heated, at times rabid criticism from the angry left for his decision to work toward a compromise, so his leadership in this issue came despite considerable political risk. Which is leadership.

UPDATE (2:35 p.m.): For a wrap-up,  see this post at Point of Law.

UPDATE (4:45 p.m.): House Blue Dogs endorse compromise. News release.

UPDATE (5:17 p.m.): The Plank, The New Republic’s blog, has the intellectual honesty to acknowledge that, yes, the Majority Leader and other Democrats did win concessions through their talks, making this in fact a “compromise.” Not one TNR likes, but not completely one-sided, either.