Spy Bill Knots Up Senate

Posted February 5, 2008 at 6:41pm

Tuesday evening, Senate Majority Leader Harry Reid (D-Nev.) went to the floor to beg Republicans to let the Senate work on a terrorist surveillance bill he ostensibly opposes.

“I’ve been waiting for an hour to have some Republican come to the floor,” Reid said. “I don’t know how much more patient I need to be. … We’re doing nothing today. Can’t we at least on [the Foreign Intelligence Surveillance Act] have some amendments offered?”

Both sides say they want to finish the bill by the end of this week, but at press time they remained at odds over the timing for votes.

It’s a tricky situation for Reid — and one he has found himself in more regularly in the year he’s been Majority Leader — to have to balance political considerations, the desires of the full Democratic Conference and his own personal views. And on the FISA rewrite he’s currently pushing and opposing at the same time, it sometimes seems that he does it because he’s between the proverbial rock and a hard place.

“I think he’s pretty passionate on the subject, but I think he does a good job of distinguishing his personal and political views … from his responsibilities as Majority Leader to do what’s necessary to move legislation forward and not allow himself to be mouse-trapped by the Republicans,” Sen. Sheldon Whitehouse (D-R.I.) said.

Whitehouse, like Reid, opposes provisions in the current FISA bill that would give telecommunications companies immunity for lawsuits related to their involvement in the Bush administration’s warrantless wiretapping program. But also like Whitehouse, Reid appears to believe that Congress needs to change the way the current terrorist wiretapping program works, regardless of whether the immunity provisions remain in the bill.

“We want to give our intelligence professionals the tools they need to make American more secure,” explained one Senate Democratic leadership aide. “What Sen. Reid has to do, and what I would say he has done well, is create a process to move a bill through, while not sacrificing his principles.”

Indeed, Reid said Tuesday that he is eager to have votes on Democratic amendments to the FISA bill because he wants to “make this bill better, to make it what I believe is more in keeping with our constitutional obligations.”

And he worked for months on an agreement with Republicans that would ensure that liberals in his caucus — such as Sens. Russ Feingold (D-Wis.) and Chris Dodd (D-Conn.) — would have the opportunity to offer amendments intended to improve civil liberties protections.

“He’s been very, very magnanimous, very, very gracious,” Dodd said. “He’s been very good about balancing what his views are and where his caucus is.”

Of course, Senate Republicans say they never would have agreed to vote on those types of amendments without some confidence that they could defeat them.

“We have made almost every change that we could possibly make,” said Senate Intelligence ranking member Kit Bond (R-Mo.).

And because Reid appears willing to let the bill pass without those Democratic amendments, he has come under intense pressure from civil liberties advocates.

“The Senate stands on the verge of making a huge mistake by endorsing the administration’s massive, untargeted, and warrantless surveillance and the illegal actions by the telecoms,” ACLU spokeswoman Caroline Frederickson said in a Feb. 1 statement. “Unfortunately, this debate has been set up to fail civil liberties and the Constitution.”

In fact, civil liberties advocates have reason to be so pessimistic about their chances on the Senate floor given that 60 Senators already voted to effectively kill a Senate Judiciary Committee version of the bill that was considered more sensitive to the privacy concerns of liberal advocates. That version also did not include immunity for telecommunications companies.

Plus, liberal Democrats have felt they were rolled before by Reid, who publicly opposed the nominations of both conservative Judge Leslie Southwick and Attorney General Michael Mukasey while working behind the scenes to set up floor votes on them.

But most Democrats said Reid has done the best he can with a difficult situation.

“Those are legitimate issues,” Dodd said of Reid’s apparent conflicts on Southwick and Mukasey. “But you know, you’re leading your caucus. You don’t get to be totally your own person.”

As for the current debate, Whitehouse said the bill improves civil liberties substantially over the current spy program.

“Even if we lose some [votes], there’s important stuff in the bill that’s really worth fighting for,” Whitehouse said.

Intelligence Chairman Jay Rockefeller (D-W.Va.) said Reid did the only thing he could, which was to allow both his bill and the Judiciary measure to follow “regular order” — a process that ultimately ended up favoring the Intelligence bill, which includes immunity.

“That’s not an emotional decision. That’s a clinical decision,” Rockefeller said of the process Reid set up.

But it’s a decision that could end up forcing House Democrats to accept the Senate-passed version, which is expected to withstand an attempt to strip the immunity provision. And that is not being received favorably on the other side of the Capitol.

“The presumption that this is a legislative fait accompli is just not true,” said one House Democratic leadership aide.

Of course, Reid repeatedly has accused Republicans of trying to re-engineer the political firestorm that kicked up last August, when Reid and Speaker Nancy Pelosi (D-Calif.) found themselves backed up against a wall by the White House and Congressional Republicans. With the GOP raising the specter of undetected terrorist attacks during the Congressional recess if Congress did not authorize broad spying powers, Democrats essentially allowed a Republican-sponsored spy bill to pass both chambers.

At issue was the government’s ability to listen in on foreign communications that were routed to or through the United States, and the White House argued that they did not want to have to get warrants in order to collect those phone calls and e-mails.

But that GOP bill expired Feb. 1, and Democrats were only able to negotiate a 15-day extension of the law with the Bush administration.

That means Reid is faced again with being backed up against a Congressional recess when the law expires next Friday. But he vowed Tuesday not to let that happen again.

“The Republicans … want to wind up like it was in August and the Senate passes something and stuffs it down the House’s throat,” Reid said. “I don’t think that’s going to happen either.”

But Republicans aren’t so sure, and they contend that Reid’s true motivation in allowing the Senate Intelligence bill to move forward is because of the same political considerations he faced last year.

“I don’t think he wants us to be able to go out and claim that the Democrats are holding up passage of this particular piece of legislation,” Sen. John Thune (R-S.D.) said. “I think there’s a great risk for him in not allowing this to move forward.”