Did DiFi Tank Retro Telcom Immunity? UPDATED AGAIN

Of all of the accounts of what happened yesterday in the Senate's consideration of the Intelligence Committee's FISA bill, the most interesting tidbit appears to be this:  Diane Feinstein (yes, that DiFi) signaled that she might not vote for the retroactive immunity bill unless it was amended to allow the FISA Court to review the authorizations the telecoms received, to see if they were legal before any immunity took effect. That is fascinating. Just fascinating.  Perhaps, even Diane Feinstein may have had enough...

Marcy Wheeler at Empty Wheel speculates that this may mean that the Senate is fractured into three blocs, with the moderate to conservative dems refusing to back absolute immunity unless there is some provision for getting judicial review of the legality of the wiretapping program itself.  

If that is so, Reid may not have the majority needed to pass the bill he wants even with the Administration's support.

UPDATE: Wheeler updates her earlier post with much more detail here.

This is important.  Wheeler spells this out in more detail here..  

But I'll give it a try.  Remember back to Ashcroft's hospital bed scene:  Gonzo and Card are browbeating him to sign off on a program of wiretapping after Acting Attorney General Comey refused.  Ashcroft refused as well.  But for a period of time, Gonzo himself, not as the Attorney Gemeral, but as the White House Counsel, signed off on the program.

But there is a hitch.  Under 18 U.S.C. §§ 2511(2)(a)(ii) and 2518(7), the telecoms may tap our phones legally if they get a warrant or a signed certification from the Attorney General, the Deputy AG, Associate AG or a State AG or a person specifically designated by one of them.  The White House Counsel, unless he or she is the designee of someone authorized to sign cannot give the certification.  

It looks like Feinstein was saying that she wanted the FISA Court to review the legality of Gonzo's authorization.  And I think that even such limited review will be anathema to the Republican members of the Senate with very few exceptions -- probably not enough to offset the folks backing Dodd's preference to strip immunity from the bill entirely.

Now don't get me wrong.  The FISA court, even though it is made up of federal judges with life tenure, is not an adequate substitute for a legal determination by an ordinary, open, public federal court, where transparency and open process are the rule not the exception.  But even FISA review is better than nothing and if suggesting it scuttled the retroactive immunity provision of Rockefeller's bill, it is a very good thing.

Even if it came from Diane Feinstein.

UPDATE:  Russ Feingold even had a nice thing to say here about DiFi's contributions.  It gets more and more interesting.