The Senate began with debate over the bill and followed up the debate with votes on proposed amendments to the FISA legislation. Senators Chris Dodd and Russ Feingold proposed an amendment which would have stricken the immunity title from the overall bill. This amendment failed 32-66. Barack Obama voted in favor of this amendment and John McCain was not present and did not cast a vote, but has expressed his support for the bill.
The next amendment that was voted upon was proposed by Senator Arlen Specter and would have required a court to review the constitutionality of the NSA programs before giving immunity to the telecom companies. This amendment also failed 37-61. Barack Obama voted in favor of this amendment and John McCain was not present and did not cast a vote, but has expressed his support for the bill.
The third and final amendment that was voted upon was proposed by Senator Jeff Bingaman and would allow for a stay on prosecution of the telecom companies until 90 days after a review of the Inspector General's report. This amendment also failed 42-56. Barack Obama voted in favor of this legislation and John McCain was not present and did not cast a vote, but has expressed his support for the bill.
After the defeat of these amendments, the Senate voted for cloture on the bill. Cloture would allow for the Senate to overcome any filibuster of the legislation. This measure passed 72-26. Barack Obama voted for cloture and John McCain was not present and did not cast a vote, but has expressed his support for the bill. The amazing part about this vote, is that it shows a complete reversal in position for Barack Obama. Obama's position during the primary was that he would support any filibuster of legislation that would give retroactive immunity to telecom companies. Voting for cloture of the bill is the complete opposite of supporting a filibuster. It is assuring that the Senate can override any filibuster of the bill.
After the vote on cloture, the Senate voted on the unchanged FISA bill and passed the legislation 69-28. Barack Obama voted in support of this bill and John McCain was not present and did not cast a vote, but has expressed his support for the bill. The bill will now move on to President Bush's desk, where he has praised its passage and stated that he will sign it.
This vote marks a dark day for the Fourth Amendment and for the very idea of the rule of law in the United States. Not only does this give the telecom companies immunity from breaking the law, but it also shields the Administration from their illegal acts in instructing the telecom companies to spy on Americans in violation of the original FISA agreement. The original FISA legislation clearly states that this is a violation of the law, a felony, that can be punished by up to 5 years in prison and a $10,000 fine for each offense. This is also a violation of the Fourth Amendment of the Constitution in that it violates the very clear understanding of needing probable cause in order to obtain a warrant for search and seizure. Both of these violations of law underscore the abuse of power shown by President Bush in ordering the telecom companies to break the law in spying on Americans. As Glenn Greenwald pointed out the other day, it is helpful to look at Thomas Paine's view on how America is supposed to function:
But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.
No one, not even the President of the United States, is above the law, or that is how things are supposed to work in this country. Instead we find ourselves immersed in the thinking of former President Nixon who believed that "when the President does it that means it is not illegal." That belief was partly the reason for which Nixon had to resign and avoid the articles of impeachment that were drafted against him. Today, 35 years later, we find ourselves in a country where our legislative representatives have voted not to hold the Administration accountable for breaking the law, but instead they have voted to retroactively protect and condone such behavior while expanding the power of the government to eavesdrop in the future. All of this being done under a Democratically controlled Congress and with both major presidential candidates supporting this action. There is simply no justification for such actions and all those who supported such detrimental legislation need to be held accountable.