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Judiciary Mulls Taking Up Separate FISA Bill

With both chambers wading into the politically treacherous waters of spying on terrorists, Democrats will be treading lightly this week as they work to both authorize and modify Bush administration surveillance programs that the majority has regularly condemned as unconstitutional.

At the same time, they’ll be trying to dodge the oft-used Republican bullet that paints them as weak on national security.

That delicate balancing act already forced House Democratic leaders to pull their bill from the floor last week. And it’s unclear whether House leaders will have settled on a new strategy for passing the bill in time to vote on the measure this week.

Faced with a Republican procedural maneuver that threatened to force Democrats to either vote against a motion to recommit praising the basic tenets of the measure or to vote in favor of the motion and effectively kill the bill — and either way producing fodder for election ads next year — Democratic leaders have spent several days mulling potential end-run strategies.

Among the options under consideration are several versions of legislative Twister.

One such scenario would have Democrats return the intelligence bill to the Rules Committee, where the GOP’s amendment would be incorporated into the measure — but sans the “bill killer” language contained in the procedural version.

Another option would restyle the GOP’s amendment as a stand-alone bill that would be moved to the House floor under suspension of the rules, limiting debate on the measure but requiring a two-thirds majority to pass. That plan would allow Members to effectively vote in support of the amendment before voting against it.

But one senior Democratic aide, who asked not to be identified, stressed Monday: “No decisions have been made.”

Bowing to pressure from the White House this summer, Congress passed a foreign intelligence surveillance bill that many Democrats said did not adequately protect Americans’ civil liberties. That measure expires in February.

As in the House, Senate Democrats now find themselves in a diplomatic dance with each other and with the White House. While the Senate Intelligence Committee passed out a bill partly crafted by the administration last week, it’s far from certain what measure actually will come to the floor considering a skeptical Senate Judiciary Committee also has jurisdiction, and even Intelligence panel Democrats who voted for the bill are likely to seek further changes.

It’s unclear when the Senate Judiciary Committee will mark up the Intelligence panel’s bill — or one of its own creation — but it definitely won’t be this week. And it could take awhile given the impasse over the committee’s access to administration documents explaining the legal underpinnings of the controversial terrorist surveillance program.

Plus, White House Press Secretary Dana Perino provoked the ire of Senate Democrats on Friday when she said that the reason the Intelligence panel was given access to the documents was that Chairman Jay Rockefeller (D-W.Va.) and ranking member Kit Bond (R-Mo.) “showed a willingness” to include immunity for telecommunications companies that aided the Bush administration’s warrantless wiretapping program.

“To the extent of anyone else being able to see the documents, I think that we’ll wait and see to see who else is willing to include that provision in the bill,” Perino said

Judiciary Chairman Patrick Leahy (D-Vt.) and ranking member Arlen Specter (R-Pa.) criticized the White House conditions as “unacceptable” and noted the administration already has ignored an Aug. 20 deadline to comply with committee subpoenas for the documents.

“If the Administration wants our support for immunity, it should comply with the subpoenas, provide the information, and justify its request,” Leahy and Specter wrote in a letter to White House counsel Fred Fielding. “As we have both said, it would be wrongheaded to ask Senators to consider immunity without their being informed about the legal justifications purportedly excusing the conduct being immunized.”

Senate Majority Leader Harry Reid (D-Nev.) backed up Leahy and Specter on Monday, saying Democrats would not blindly agree to provide immunity just to get access to documents they have been requesting for years.

“I must say in the most emphatic terms — the administration must turn over all the information … needed to the Senate Judiciary Committee and to the relevant House committees to do their business — and they must do so immediately,” Reid said on the floor.

Of course, Intelligence Democrats flatly denied any quid pro quo when it came to the bill they passed last week. Rockefeller spokeswoman Wendy Morigi explained that the chairman already had decided to include limited immunity for telecommunications companies before the White House granted the panel “read-only” access to documents related to the spy program. Morigi said Rockefeller had refused to hold a markup of his bill until he saw the documents.

Even so, Rockefeller’s bill attempts to make everyone — including the White House — happy by allowing a broad intelligence-gathering program to go forward, adding some recognition of civil liberties for American surveillance targets and inserting rigorous judicial and Congressional oversight.

If Judiciary doesn’t act on anything, the panel could forfeit its right to weigh in and the Rockefeller measure would proceed as-is to the Senate floor. (There’s no guarantee Reid would bring it up if that happened, however.)

“If [Judiciary members] want to stay in the game, they’re going to have to mark something up,” pointed out one civil liberties activist.

If Judiciary does take it up, two Intelligence panel Democrats who also sit on Judiciary — Sens. Sheldon Whitehouse (R.I.) and Dianne Feinstein (Calif.) — may seek changes even though they already voted for the Rockefeller measure.

A Whitehouse spokeswoman said the freshman Senator is concerned the bill does not ensure that law enforcement agencies properly handle and dispose of information on innocent Americans that may be collected in the surveillance dragnet authorized by the bill. Whitehouse wants the secret Foreign Intelligence Surveillance Act court to assess the government’s compliance with procedures designed to minimize the collection and dissemination of innocent Americans’ information.

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