As my colleagues know, the Senate Judiciary and Intelligence Committees share jurisdiction over the Foreign Intelligence Surveillance Act. Both Committees have worked diligently over the past few months, this hard work has resulted in two different versions of legislation to improve FISA – S. 2248 – reported out of the Committees. I consulted extensively with Chairman Rockefeller and Chairman Leahy about the best way for the Senate to consider this subject.

“I have determined that in this situation, it would be wrong of me to simply choose one committee’s bill over the other. I personally favor many of the additional protections included in the Judiciary Committee bill, and I oppose the concept of retroactive immunity in the Intelligence bill. But I cannot ignore the fact that the Intelligence bill was reported favorably by a vote of 13-2, with most Democrats on the committee supporting that approach. I explored the possibility of putting before the Senate a bill that included elements of both two committee bills. Earlier this week, I used Senate Rule 14 to place two bills on the calendar.

“The first – S. 2440 – consists of Titles I and III of the Intelligence bill, but did not include Title II on retroactive immunity. The second bill – S. 2441 – consists of Title I of the Intelligence bill and Titles II and III of the Judiciary bill. But after consulting further with Chairman Rockefeller and Chairman Leahy, a consensus emerged among the three of us that the best way to proceed would be by regular order. Both Chairmen agreed with this approach.

“Under regular order, and the rules of the Senate governing sequential referral, I will move to proceed to S. 2248 – the bill reported by each committee. When that motion to proceed is adopted, the work of both committees will be before the Senate. Because of the order in which they considered the bill, the Intelligence Committee version will be the base text, and the Judiciary Committee version will be automatically pending as a substitute amendment.

... I expect that when we begin debate on the bill, there will be amendments to incorporate many of the Judiciary Committee provisions into the Intelligence Committee text.

.... There is one issue that cannot be resolved through informal negotiation. As some are aware, the Intelligence Committee’s bill provides the telephone companies with retroactive immunity from lawsuits filed by their customers for privacy violations. Many members, myself included, believe that such a grant of immunity is unwise. I expect there will be a full debate on this subject next week.

So, this is pretty bad because in order to have any semblance of a bill that is acceptable to us, there will now have to be agreement both to strike the telecom immunity from the Intel Committee bill and to add in the wiretapping safeguards from the Judiciary Committee's bill. Smintheus at Daily Kos has a new post up explaining some of the problems.

From my vantage point, without both, elimination of immunity from the Intel Committee bill and inclusion of greater protections against wiretapping from the Judiciary Committee bill, I hope there's a filibuster.

Tim Tagaris, Sen. Dodd's internet director, posted this earlier today on where the Senators stand on that. Here's Dodd's Filibuster page.

It's somewhat concerning that many of the Senators (Biden, Clinton, Obama)who have agreed to filibuster seem to be basing their objections only on the immunity issue and not over the possible failure to include the Judicary Committee's extra protections. They should filibuster over both. Otherwise, we get a bill with no immunity but too many expanded wiretapping powers. As the ACLU says,

"The bill sent to the president must not allow for massive untargeted dragnets that scoop up all of our international calls and emails. Smart – and constitutional – surveillance is actually targeted at bad guys.

"American communications must be protected by individualized court orders as the Constitution demands.

Actually, I hope the whole thing goes down to defeat in the Senate. Bush's bill expires in February. Let it die a natural death. FISA's not broke, it doesn't need fixing and it certainly doesn't need weakening at the expense of the Fourth Amendment.