Activists see Senate Dems backing down to Bush, ready to give immunity to phone companies
Nick Juliano
Published: Friday December 14, 2007
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As lawmakers hurry to clear their legislative plates before rushing home for Christmas dinner, it appears all-but-certain that Congress will not finish work to update a foreign spy law before the new year.

But votes expected this week and next in the Senate have civil libertarians worried about their prospects to block a proposal that would free telecommunications companies from legal oversight of their facilitation of President Bush's post-9/11 warrantless wiretapping scheme.

As the timeline appears to be shaking out, Democrats seem headed for an 11th-hour showdown with the White House over updates to the Foreign Intelligence Surveillance Act. In a similar showdown this summer, Republicans said a failure to act on FISA would endanger the country. On its way out the door for summer vacation, Congress passed a temporary update to the law that was widely panned for its lack of judicial oversight and constitutional protections.

Although Democrats succeeded in keeping telecom immunity out of the August bill, it seems likely to worm its way into this latest version, at least in the Senate, despite voracious opposition from prominent Democrats there, including all the party's presidential candidates.

"People who had some faith that [congressional Democrats] were going to live up to their campaign promises are a little disappointed," Caroline Fredrickson, the top Washington lobbyist for the American Civil Liberties Union, told RAW STORY Friday.

The House and Senate have spent the last few months crafting permanent FISA updates that would close loopholes in the 1978 law that President Bush says limits US intelligence agencies' ability to spy on suspected terrorists. The Senate is expected to begin debate on dueling FISA updates Friday and into next week, although it remains unclear whether the Senate will pass a bill before recessing just before Christmas.

There is some common ground between Bush and the Democratic congress on closing that loophole, which required US spies to get court warrants before listening in on phone calls between intelligence suspects abroad.

But there is substantial opposition among Democrats to a companion proposal put forward by Bush and Republicans in congress to grant legal immunity to telecommunications companies that facilitated the president's post-9/11 warrantless wiretapping program.

Last month, the House passed a FISA update that did not include immunity for telecommunications companies, but the Senate still has not voted on companion legislation, although a bill could come to the floor as soon as this week. The Senate Intelligence and Judiciary committees share jurisdiction over the FISA law, but the committees have come down on different sides of the immunity issue.

It is up to Senate Majority Leader Harry Reid (D-NV) to decide which proposal the full chamber will consider. As things stand now, Reid is expected to send to the floor the Intelligence Committee's bill, which includes immunity, with the immunity-free Judiciary bill pending as a substitute amendment.

The way things stand now, observers expect 60 votes would be required to substitute the immunity-free judiciary proposal for the intelligence committee bill, a standard few believe could be reached. Debate on the bill will begin Monday, Reid said from the Senate floor Friday.

"This is one of the most bizarre procedural scenarios that I've ever dealt with," said Fredrickson, who spent nine years as a Senate staffer.

Further muddling matters, Sen. Chris Dodd (D-CT), a dark-horse presidential candidate, announced his intention to place a "hold" on any FISA update containing immunity. Reid is apparently ignoring his request, but Dodd has vowed to filibuster the bill and says he will work to block immunity any way he can.

On Thursday, the Judiciary Committee voted down a proposal from Sen. Arlen Specter that would have allowed the 40 or so lawsuits that have been filed to go forward, but it would have made the government the defendant in those suits, not the telecoms. Specter, the committee's ranking Republican, could re-introduce his amendment when the FISA update comes to the Senate floor.

Opponents of telecom immunity see the lawsuits against the telecoms as the only opportunity to find out whether the warrantless wiretapping was constitutional, as the Bush administration has claimed executive privilege and state secrets doctrines in dodging Congress's attempts to investigate the program. Specter said his proposal was aimed at allowing those suits to go forward without bankrupting the telephone and internet companies defending themselves.

"What rankles me is that we're being asked to approve of something that we don't even know what happened," Specter said during a Judiciary Committee meeting today. His proposal failed on a 5-13 vote.

The Senate has a raft of spending bills and other legislation to address before it goes to recess at the end of next week, so it's still up in the air whether the FISA update will come to the floor before then. Whatever happens, the House and Senate are not expected to meet in conference or send a bill to the president until January.

"Practically speaking, how do you do that?" Judiciary Committee spokeswoman Erica Chabot said in an interview Thursday.

In August, Congress rushed through a temporary FISA update, which many Democrats and civil libertarians found unacceptable, under heavy pressure from the Bush administration. The president, along with members of his administration and GOP lawmakers, issued ominous warnings that a failure to act immediately would leave the country vulnerable.

The House and Senate passed a temporary FISA update, the Protect America Act, less than 24 hours before each adjourned for a month-long recess, and lawmakers later complained that the tight deadline they faced forced them to adopt an unacceptable bill.

Congress has spent more time on the current FISA-update proposals, but they still seem headed for a potential showdown with the White House under a looming deadline. The PAA expires Feb. 1, but Congress does not return to session until week of Jan. 15, giving them about two weeks to finalize a bill for the president.

Further complicating measures is Bush's vow to veto any bill without telecom immunity -- such as the version passed in the House -- and he will give his State of the Union address Jan. 29, two days before the PAA would expire.

Democrats could feasibly pass an immunity-free bill that gives the president what he wants except for telecom immunity and dare him to veto it, thereby allowing the PAA to expire and re-opening the loopholes he says endanger national security.

Whether there is enough support for such a strategy remains to be seen. Plenty of Democratic senators seem to have been convinced of the merits of giving immunity to telecommunications companies, and the Democrats have demonstrated in the past that they are willing to bow the Republican attacks that they are weak in fighting terrorism, Fredrickson said.

"Anything that's the slightest bit of a risk ... they decide not to deal with it," she said. Rather, the mantra among Democrats seems to be "keep the majority at all costs."