An ongoing political tussle over a controversial expansion of electronic surveillance law may be put to rest sometime this week.
Under pressure from the Bush administration, the U.S. House of Representatives may hold an up-or-down vote on whether to shield companies like AT&T and Verizon from lawsuits alleging illegal cooperation with government spy agencies.
The debate, of course, surrounds attempts to "modernize" the 1978 Foreign Intelligence Surveillance Act, or FISA, which requires a warrant when foreign intelligence is being collected and at least one end of the communications is located in the United States.
There's general agreement among Democrats and Republicans that some updates are needed to keep the law consistent with changes in communications technologies. For instance, right now, some argue that it's technically necessary under FISA to get a warrant to spy on communications between foreigners--a requirement that wasn't intended by FISA's authors--just because the wires connecting their conversation happen to pass through the United States.
That leaves disagreement on two main fronts: how much power to give the attorney general and the president in signing off on surveillance without a court warrant, and whether to grant telephone companies legal immunity. The latter piece is by far the most contentious at this point.
But in recent days, Democratic leaders, including House Intelligence Committee Chairman Silvestre Reyes (D-Texas) and Majority Leader Steny Hoyer (D-Md.), have talked of plans to bring a "compromise" bill to a floor vote this week.
Numerous Democratic aides contacted by CNET News.com declined to elaborate on what exactly that middle ground would look like, saying no decisions have been made yet. But according to a recent Los Angeles Times report, there's talk of splitting off the immunity provisions from a broader revamp of electronic eavesdropping law.
That would create a standalone bill out of an arguably less controversial portion of an already-passed Senate bill, which would, among other things, expand the attorney general's powers to sign off on wiretaps by allowing him to avoid getting court approval up to a year. If that section passed in the House, then the Bush administration would arguably have a tougher time contending that its political foes don't care about updating surveillance law.
But if the Democratic leaders also call up the immunity provision for a separate vote, it could be good news for proponents of so-called "retroactive" immunity and bad news for civil liberties groups. That's because President Bush and other Republican leaders have maintained that there's enough of a margin to pass that proposal and send it to the president.
"Our position is that there is a strong bipartisan majority in the House of Representatives for passing the bipartisan FISA bill that has already passed the Senate by 68 votes," Michael Steel, a spokesman for House Republican leader John Boehner (R-Ohio), told News.com Monday. "The question is when the House Democratic leadership is going to stop standing in the way of the will of the House."
During the Senate vote, 19 Democrats joined 48 Republicans and an independent to give blanket legal immunity to all telephone and Internet companies that may have collaborated with Bush administration wiretapping programs between September 11, 2001, and a January 2007 date on which the attorney general submitted a once-secret NSA program for court review. (It would also immunize telephone companies going forward and wipe out investigations by state utility commissions into any allegedly illegal practices.)
On the House side, while the majority of Democrats have showed inclinations toward rejecting the Senate bill because of opposition to the immunity section, there's a contingent of about 20 more conservative Democrats who support it.
The whole process may seem counterproductive if, in the end, both parts succeed. But that second, separate vote would seemingly allow House Democrats who oppose that proposal to make a political statement: They could look back and say they had taken a stand against wiping out lawsuits against telephone companies, even if their efforts were ultimately fruitless.
Meanwhile, calling out the House Democrats for their sluggishness in passing the Senate bill has become a near-daily pastime for President Bush. Here's a snippet from he delivered to a meeting of state attorneys general in Washington on Monday:
These lawsuits are really unfair, if you think about it. If any of the companies believed to have helped us--I'm just going to tell you, they were told it was legal by the government. And they were told it was necessary by the government. And here they are getting sued.
So far, Democrats have been dismissing such charges as "fear-mongering," arguing that FISA already gives intelligence agents ample authority to eavesdrop on would-be terrorists. And even the Bush administration has acknowledged that its so-called "private partners" are continuing to cooperate in surveillance investigations under existing court orders, although they've voiced "misgivings" about continuing to do so if legislative "uncertainty" remains.
With that backdrop, it seems a little curious that Democrats have been playing up the number of meetings and discussions they're having and their efforts to pass a universally accepted FISA bill once and for all. But that nevertheless is the way things appear to be unfolding.
"We think probably within the next week we'll hopefully bring it to a vote," Intelligence Committee Chairman Reyes told CNN on Sunday evening.