It’s déjà vu all over again on terrorist spying legislation in Congress, with Democrats working frantically to pass a new surveillance bill and Republicans trying to make that process as difficult as possible in the run-up to the Presidents Day recess.
[IMGCAP(1)]House and Senate Democratic leaders “will have to make some decisions in the next couple of days on how to proceed,” said one Senate Democratic leadership aide. The aide added, “There needs to be a process to negotiate with all parties involved. … There are significant differences between the House, the Senate and the White House.”
That’s putting it mildly. As Senate Democrats remain poised to pass a bill late today that civil libertarians, along with many House Democrats, love to hate, no one seems to have figured out how the two chambers and the White
House will come to an agreement in the three days before the current revised Foreign Intelligence Surveillance Act law expires on Feb. 15.
In the Senate, Intelligence Chairman Jay Rockefeller (D-W.Va.) appears to have enough votes today to beat back amendments that attempt to strip his bill of lawsuit immunity for telecommunications companies that aided the Bush administration’s original warrantless wiretapping program. That provision is the main reason President Bush is backing the Senate bill and threatening to veto just about everything else.
Because the immunity provision will likely remain intact, the House is expected to balk. The House measure does not provide immunity, and, in the eyes of the American Civil Liberties Union, provides better protections than the Senate for Americans who might get caught up in the wiretapping dragnet authorized by both the bills and the current law.
“How much are [House Democrats] going to stand by the work they did?” asked Caroline Fredrickson, legislative director for the ACLU. She added, “If they’re going to allow themselves to be bullied on that, they might as well close up shop and allow the president to call the shots on everything.”
So the question remains, what will the House do?
One House Democratic leadership aide provided a clue. “The general sense is that we’ve not had enough time with the documents to make an informed decision,” the aide said.
Those “documents” would be the highly sought-after papers the administration gave the telecoms in attempting to get their compliance with the warrantless wiretapping program. Democrats in both the House and Senate begged to see them for months, and while the Bush administration provided viewing to select Senate committees late last year, the House Intelligence and Judiciary panels were only given limited access on Jan. 24.
Taking more time to view the documents would likely entail another extension of current law, which originally expired on Feb. 1 but now expires on Friday.
House Democrats also are exploring other options, including one that would send the measure back to the Senate with a temporary moratorium on telecom lawsuits while the House, Senate and White House work out a deal, one senior House Democratic aide said.
“We’re not going to take their immunity [language] as is,” the aide said, noting that the House also would probably insist on its version of the surveillance program, which gives the FISA court more say in how the spying program is designed.
But without the Senate’s version of immunity, there are not likely 60 votes in the Senate needed to prevent a filibuster, Republicans said.
“The Republicans and the Democrats [in the Senate] have pretty much compromised as much as possible,” said Shana Marchio, spokeswoman for Senate Intelligence Vice Chairman Kit Bond (R-Mo.). “Further changes would make [the program] operationally impossible.”
Of course, Democrats on both sides of the Capitol continue to make noises that they might be in a position where they have to let the current law expire, either because of a Senate GOP-led filibuster or a threatened presidential veto.
To try to insulate themselves from the likely Republican argument that they’ll be exposing the United States to new terrorist attacks, Democrats have argued that the administration can continue ongoing eavesdropping investigations until August or possibly later, and they can still use the FISA court to get approval for new wiretaps.
But at the same time, Democrats are nervous about giving Republicans fodder in an election year. To that end, Senate Majority Leader Harry Reid (D-Nev.) has three bills ready to go: a 15-day extension, a 30-day extension and an 18-month extension. He may seek consent to pass one or all of those bills this week, the Senate Democratic leadership aide indicated.
And if it does expire because of filibuster or veto, it’s the fault of Republicans and the White House, Democrats will argue.
“If we say we’re willing to do an extension and they refuse, it will be them who allow the program to expire, rather than Democrats,” the House Democratic leadership aide said.
The ACLU’s Fredrickson said she was heartened somewhat by statements from both Reid and House Majority Leader Steny Hoyer (D-Md.) indicating “the world will not end” if the current law expires.
But Republicans are having none of it, saying Democrats are the ones who have dragged their feet on reauthorizing the surveillance law. And they note that Reid himself argued that the extension Congress passed last month would give the House and the Senate time to find a middle ground.
“The Majority Leader said the last extension will allow us to complete work on FISA. We agree,” said Don Stewart, spokesman for Senate Minority Leader Mitch McConnell (R-Ky.). “The Senate will complete work Tuesday on the bipartisan … bill. It is a bill that protects the country and one that will be signed into law. We need to focus on completing action on that bill. … We do not need yet another delay.”
Of course, Stewart did not mention that Reid originally sought a 30-day extension, not the 15-day extension the president reluctantly agreed to sign.
Reid has decried what he sees as the Republicans’ attempts to re-create the situation Democrats found themselves in last August, when the Bush administration and Republicans used the threat of undetected terrorist attacks to get Democrats to pass the original law. It allowed the government to bypass the FISA court in order to wiretap communications routed through the United States but originating overseas.
Plus, Democrats point out that the main disagreement between the chambers is over immunity and that Republicans are threatening a national security program in order to protect big business.
“It didn’t raise any hackles [among Republicans] when the telecoms cut off the FBI [wiretapping access] over unpaid phone bills,” said the Senate Democratic leadership aide. “So their argument seems disingenuous at best.”