When the House Democrats prepared to rein in the administration's surveillance program Wednesday morning, Virginia Republican Eric Cantor knew just what buttons to push to make them panic. He announced a poison pill amendment: Nothing in the bill, Cantor wrote, "shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization … from attacking the United States or any United States person."
The amendment was clearly a political stunt, but it was worse than that -- it was a sure-fire torpedo for sinking Speaker Nancy Pelosi's much-anticipated second shot at reforming the Foreign Intelligence Surveillance Act. Indeed, if Democrats had voted the amendment down, they would have handed Republicans ample material to accuse them of being soft on terrorism. But if Cantor's amendment had passed, it would have forced Pelosi's bill -- the so-called RESTORE Act -- back into committee, creating an indefinite delay and potentially writing a redundancy into the bill. RESTORE, according to New York Democrat Jerrold Nadler, already "includes emergency provisions, including the ability to get a warrant after the fact, to ensure the government will never have to stop listening to a suspected terrorist."
Unable to keep the caucus together for a "no" vote, but also unwilling to allow such a chink in the bill, Democratic leadership decided not to allow a vote at all -- and what could have been a tremendous victory for Pelosi turned into a major defeat.
House Majority Leader Steny Hoyer released a statement shortly after the fracas, assuring wary supporters that the RESTORE Act wasn't completely dead. Republicans, he said, "have offered an amendment that, if passed, would have substantially delayed this important legislation -- which is designed to protect the American people -- by proposing language already provided in the bill."
"We have every intention," Hoyer said, "of completing consideration of this critical legislation and fulfilling our twin objectives -- protecting the American people and protecting their civil liberties."
But pulling the bill also constitutes a delay, and opens the way for a far less attractive measure that is rapidly evolving in the Senate.
Late Wednesday, Senate Intelligence Committee leaders reached an agreement with the White House over a major sticking point in their bill. The White House has insisted for weeks that telecommunications companies be granted retroactive immunity for any laws they may have broken by assisting administration spooks who were conducting warrantless surveillance in the months after September 11. For most Democrats and civil libertarians, that amnesty was a non-starter. "Businesses that break the law should be held accountable," the ACLU has demanded. "We expect these companies to keep our personal information private, and if they break the law, there should be consequences -- not a re-write of the rule book."
But the Senate caved. Committee leaders have reportedly agreed to offer full immunity to the telecommunications firms.
The Senate bill was marked up in a closed committee session on Thursday, and the larger details remain unknown. The bill has won the support of Senate Intel Chair John Rockefeller, D-W.Va., and Director of National Intelligence Mike McConnell, but the so-called compromise language granting immunity to telecoms might create significant opposition from the progressive wings of both bodies.
Senator Chris Dodd, for instance, has already put a hold on any legislation that includes such a blanket grant. "I have decided to place a ‘hold' on the latest FISA bill that would have included amnesty for telecommunications companies that enabled the President's assault on the Constitution by illegally providing personal information on their customers without judicial authorization," Dodd said today.
What comes next are a series of choices for Democrats. If the rest of the Senate bill contains provisions for protecting American civil liberties that mimic those in the RESTORE Act, then Democrats will have to decide whether granting immunity to telecommunications companies is worth the political price they'll pay for killing the legislation and, perhaps, allowing the old amendments to FISA -- enshrined in the Protect America Act, passed in August -- to sunset early next year.
If, on the other hand, the House Democrats get their bill back on the rails, muscle it through the chamber, and keep the Senate's immunity language out of the final package, it will almost certainly be vetoed by President Bush.
At that point they'll have to choose between renewing the Protect America Act, granting the president even greater spying power, or letting the August reforms lapse altogether. It's an unkind menu of options, but the last of them is the only one among them that will rescue American civil liberties from the damage they suffered in August, when the Congress caved on FISA the first time.