The Impeachment Hearing Room

Battle Over FISA to Reach Its End

By Tim Starks, CQ Staff

Efforts to confront President Bush over electronic surveillance laws likely will end abruptly in the Senate, with the White House the clear winner and Democrats dropping the fight until a new administration takes office.

The Senate is expected to send Bush a bill (HR 6304) Wednesday that would rewrite electronic surveillance guidelines after it votes down a trio of apparently doomed Democratic amendments.

The legislation would overhaul the Foreign Intelligence Surveillance Act (FISA, PL 95-511). The White House supports the bill, assuming the amendments it opposes fail as expected.

Christopher S. Bond , R-Mo., said the bill ended up being essentially what Bush wanted. “There really is not much that is significantly different, save some cosmetic fixes that were requested by the majority party in the House,” said Bond, who strongly supports the bill.

Bush has repeatedly said one of his top legislative priorities is overhauling the law to authorize enhanced executive branch spying powers and to provide a legal shield to telephone companies that cooperated with his warrantless surveillance program. The bill would establish a process to give Bush both, although with some additional court and congressional oversight.

Many Senate Democrats are expected to vote for the legislation, including presumed presidential nominee Barack Obama of Illinois, who is scheduled to attend the vote. Obama has said he opposes the provisions that would effectively give the telephone companies immunity for past participation in Bush’s surveillance program, but he favors the bill’s spying authority provisions.

Majority Leader Harry Reid , D-Nev., said that when the Senate returns Wednesday, less than two hours of debate will remain on the FISA legislation, leading to a series of votes on amendments and then clearing the bill for Bush’s signature.

Reid issued a statement saying he would vote against the legislation, even as he noted that it was a “compromise bill” that he called an improvement over previous versions.

Looking Ahead

The bill would be effective through 2012, but some lawmakers, including Reid, might try to revisit the issue as early as next year.

“The debate on this FISA legislation may be nearing an end, but the history books are yet to be written,” Reid said in his statement.

Reid added, “Next year, for example, Congress will be required to revisit a number of provisions of the Patriot Act. That may provide a suitable occasion to review the related issues in this FISA bill.”

Action on the bill had been scheduled for Tuesday but was delayed for senators who wanted to attend the funeral of former Sen. Jesse Helms, R-N.C. (1973-2003).

Bush administration officials have signaled their opposition to all three pending amendments.

Each would modify a provision that would effectively wipe out lawsuits against the telephone companies for assisting Bush’s warrantless surveillance program.

The first amendment, by Democrats Russ Feingold of Wisconsin and Christopher J. Dodd of Connecticut, would strike the entire section that deals with retroactive legal immunity, thereby letting the lawsuits proceed.

“I do believe at this point in time to give this retroactive immunity kind of makes a mockery of the fact that we’re supposed to be a government of laws, not people,” Barbara Boxer , D-Calif., said during Tuesday’s floor debate.

But Intelligence Chairman John D. Rockefeller IV , D-W.Va., defended the provision. “Private companies who cooperated with the government in good faith, as the facts before the congressional Intelligence committees demonstrate they did, should not be held accountable for the president’s bad policy decisions,” he said.

The amendment would need only a simple majority to win adoption, but a similar amendment offered during debate on an earlier FISA bill (S 2248) fell short, garnering 31 votes.

The other two amendments would need 60 votes for adoption. Since Bush officials have said they will recommend a veto should either succeed, it is unlikely that a significant number of the Senate’s 49 Republicans would vote for the changes.

The bill would give telephone companies immunity if a federal district court determined they received assurances from the government that the program was legal and authorized by the president. According to a Senate Intelligence report, they did receive such assurances.

Under an amendment by Arlen Specter , R-Pa., the court would instead review the constitutionality of the president’s program before the suits could be dismissed, which he said would ensure that Bush’s program received scrutiny. The administration argues that the amendment could jeopardize immunity.

The other amendment, by Jeff Bingaman , D-N.M., would stay all pending lawsuits until 90 days after Congress receives a report, required by the bill, by inspectors general on the president’s surveillance program.

That would give Congress a chance to decide on immunity based on a third-party review. If lawmakers took no action within 90 days, the provisions would go into effect.

“The current bill’s approach is to grant the immunity first and investigate later,” Bingaman said. “I don’t know myself what the facts are, but like most members of Congress who do not sit on the Intelligence Committee or the Judiciary Committee, I received very little information regarding what actually did occur.”

Greg Vadala and Catharine Richert contributed to this story.