Senator Feinstein's office has responded to our criticisms:

"Today's post on Senator Feinstein's amendment to the FISA bill contains a number of serious and misleading factual errors.  I write to correct the record, and I hope that you will update your post with this information.
 
1. You write the ACLU has been "vocal in their opposition" to the Feinstein amendment.  Not true.  They have not taken a position on the Feinstein amendment."

 
2. Additionally, you quote Tim Sparapani, ACLU senior legislative counsel, as evidence of the ACLU's opposition.  This quote – which appeared in The Hill, not Roll Call – is not in reference to the Feinstein amendment, but to the Specter amendment.
 
              "The ACLU, meanwhile, has condemned the Specter amendment because it believes the measure leaves some loopholes open to the government."  (The Hill, DoJ, ACLU cool to Specter's FISA deal, 01/17/08) http://thehill.com/leading-the-news/doj-aclu-cool-tospecters-fisadeal-2008-01-17.html

 
We did not claim this quote applied to Feinstein's amendment directly. Instead we used it to illustrate the reasoning behind our own opposition to Feinstein's amendment. More on this below. They are correct that the email sent out to Courage Campaign members said the quote was from Roll Call not The Hill. It is our mistake.

3. As for the content of the Sparapani quote, it does not apply to the Feinstein amendment providing independent judicial review of immunity claims.
 
                   He said:  "Unless Congress wholly rejects [the] executive privilege or state secrets claims, there are legal hurdles that could prevent the full hearing of the matter in federal court," said Tim Sparapani, ACLU senior legislative counsel.  "We also oppose having the FISA court making the good faith determination unless outside parties are allowed to argue in front of the secret court, which has never happened before.  Otherwise, only one side is represented."
 
Let me explain how it doesn't apply:
· First, the Feinstein amendment specifically rejects the state secrets claim.
 
· Second, the Feinstein amendment specifically allows outside parties to argue their case in front of the FISA Court.  The court's ruling can also be appealed to a higher court.

But even if it allows outside parties (and even then only those who have already filed lawsuits, disempowering other Americans who have not yet filed), and even if their ruling can be appealed, that is still not the same as public, open courts handling this issue. And further, it would still potentially allow immunity - which we still flatly oppose - and would still use the discredited "good faith" determination to grant such immunity. The deck would remain stacked against plaintiffs and against the rule of law.

Bottom line:  This amendment preserves independent judicial review of the telecom company's immunity claims.  If it can be shown that the companies were not acting based on legal government certification and not in good faith, then their claims of immunity can be denied by the Court.

In yesterday's press release they said "OR" in good faith. Which is it - "and good faith" or "or good faith"?
 

This is a reasonable alternative.  It adds court review of any immunity.  It allows the companies and the plaintiffs to make their case before this federal court skilled in intelligence.

We strongly disagree that this is a reasonable alternative. It is wrong for the FISA court or the US Senate, directly or indirectly, to grant or make possible immunity for illegal activity. No matter how Feinstein dresses this up, this is fundamentally designed to give the appearance of protecting legal rights while setting up a process that is virtually certain to provide immunity anyway.