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How Will Sen. Salazar Vote on FISA?

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We know how Colorado’s representatives in Congress voted on the FISA bill with telecom immunity last week. The Senate is expected to vote soon.

It’s a pretty sure bet Republican Senator Wayne Allard will vote for the bill. How about our Democratic Senator Ken Salazar? Will he vote the same way he voted in February when he refused to support the Chris Dodd amendment that would have stripped the provisions providing the telecom companies with immunity?

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Firedoglake, an activist blog that is organizing a netroots effort to call Senators and request they oppose the bill, writes that the bill is worse than previously reported. Could a phone campaign to Sen. Salazar change his mind?

It didn’t last time, much to the dismay of Colorado’s progressive bloggers. Via Zapaterro at Square State:

Well, all your phone calls, letters and faxes to Ken Salazar on FISA and telecomm immunity went for naught. His admin actually told me once that he was getting just as many calls that supported immunity for illegal spying: Ken likes to vote on the official Senate record, or so it seems. He also likes to play it safe, way too safe. This is a nation of laws, not men. But hey, we can all trust George Bush and the Republicans with our civil rights, right? That’s what Ken Salazar thinks.

It’s not that Senator Salazar doesn’t have problems with President Bush’s warrantless electronic surveillance of Americans without a court order. Here’s what he said on CNN back in 2005:

PHILLIPS: Well, what do you think, did the president break the law?

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SALAZAR: You know, I think it’s arguable that he did break the law, and I think it’s important for the U.S. Senate to hold hearings to make that determination. There is nothing specific in any of the laws that he has cited or even in the Constitution that would give the commander in chief the power to go ahead and spy on American citizens. And that’s what has happened here. And so I think it’s very important that we scrutinize what it is that he did and make a determination as to whether or not the law has, in fact, been broken.

….PHILLIPS: We’ll get back to those hearings in just a minute. But you mentioned the FISA court. The president said, look, I didn’t have time. I needed to get the information for the sake of national security, I had to go forward. Do you think he should be able to do that?

SALAZAR: You know, the FISA court is controlled by the Department of Justice, and there — it’s a secret court, and they never had any trouble at all going to that court and getting warrants to conduct numerous searches. That has been going on ever since 9/11, ever since the FISA court was created. So there was no reason why a FISA court order could not have been entered in these cases.

….as we move forward to deal with the issues of terrorism, it’s also important for us to remember that the cornerstone of our liberties is in our Constitution and we should not trample on the Constitution. PHILLIPS: Senator Ken Salazar.

Here’s the statement he issued on his vote in January, 2008. In February, 2008, he issued this statement, which included his views on telecom immunity:

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During the debate, the Senate also addressed the issue of retroactive immunity for telecommunications companies. As you may know, in the wake of the September 11th attacks, it is alleged that a number of telecommunications companies in the United States were asked by the National Security Agency (NSA) to turn over the personal data of their American customers for examination without a warrant. Subsequently, a number of Americans have filed lawsuits against these companies for violating their Fourth Amendment right to privacy.

S.2248 as reported to the full Senate provides narrowly circumscribed, retroactive immunity to the telecommunications companies in question. In response to this, I cosponsored Senate Amendment 3858, which would have referred the lawsuits to the FISA Court for review. Under this approach, if the court determined that the companies acted in good faith and had a reasonable belief they were abiding by the law when they complied with the government’s requests, the lawsuits would have been thrown out of court; if not, they would have proceeded as planned. Unfortunately, this amendment did not garner enough support to be included in the final Senate bill. S.2248 now awaits action in a House-Senate conference committee. Please rest assured that I will keep your thoughts in mind as my colleagues and I continue work on this legislation.

The FISA bill that passed the House last week requires a federal district court to determine whether the telecom company got a notice from the Attorney General or intelligence agency stating that its cooperation in the surveillance activity is lawful. If so, the lawsuit must be thrown out and the company has immunity from civil liability.

This is similar to Sen. Salazar’s sponsored Amendment to the last bill — although Salazar was willing to have the secret FISA court rather than a federal district court make the determination, providing even less transparency. So I think there is little doubt he will vote in favor of the bill.

Sen. Salazar has been busy lately but not on FISA. He’s working on environmental and home ownership legislation. He told a blogger at Colorado Pols in recent days he hadn’t even read the FISA bill yet.

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I asked him about the FISA bill and what was real interesting about his answer was that he said that the bill addressed a number of issues that need to be codified in law and that we need to get it taken care of so we can move on and address other issues. (He said he needed to read the bill before deciding if he would vote for it although his discussion of what he was looking for makes a yes very likely.)

I fully expect Sen. Salazar to vote for the FISA bill. His calling card is bipartisanship and compromise. But it can’t hurt to let him know how you feel on the issue. His phone number is (202) 224-5852.

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