Today, the House of Representatives will hold a vote on the RESTORE Act, an amendment to the amendment to the surveillance law that civil libertarians have been assailing since August, when, in the hours before Summer recess, House Democrats caved to White House demands and handed the president a six month reign to spy on American citizens.
The vote itself is a victory for Speaker Nancy Pelosi. Moments after the Congress passed the August measure enshrined in the so-called Protect America Act -- Pelosi demanded her committee chairmen get to work fixing it.
In a letter to Judiciary Committee Chair John Conyers, D-Mich., and Permanent Select Committee on Intelligence Chair Silvestre Reyes, D-Tex., the speaker urged the committees to "send to the House, as soon as possible after Congress reconvenes, legislation which responds comprehensively to the Administration's proposal while addressing the many deficiencies."
But aides doubted they could move any legislation that would survive a Bush veto before February 2008, when the August bill sunsets. At that point, a veto would kick off a vicious fight between the Congress and the White House, with both facing the high stakes of forcing backward progress -- if nothing's passed, the law reverts to the old, antiquated Foreign Intelligence Surveillance Act, a law that most agreed required at least a narrow update.
The RESTORE Act is, in that sense, a testament to Pelosi's ability to shepherd her committees. More substantively, the bill does most things civil libertarians wanted it to do -- excepting get rid of a provision that may allow the government to spy on numerous Americans with a single warrant. At the same time, it maintains the provisions of the August amendment that modernized the Foreign Intelligence Surveillance Act by allowing agents to investigate foreign suspects through taps in the Untied States.
Today's bill also requires the White House to release to Congress the details of its so-called Terrorist Surveillance Program -- implemented after the Sept. 11 attacks -- which did an illegal end-run around FISA. And it has won the support of New York Democrat and civil liberties titan Rep. Jerrold Nadler, who called it "not perfect, but ? a good bill."
If Pelosi passes the RESTORE Act, she will have proven her ability to control her whole caucus in the face of White House attacks over national security. But that won't be the end of this fight -- not by a long shot.
Once through the House, the bill will still run the risk of being hacked to bits in conference with the Senate, which is hamstrung by more complicated procedural rules, and has yet to release its version. The details of that proposal won't be known until later this week, but the brief flashes we've seen thus far have left administration critics nervous.
As has been reported by Eric Lichtblau and Carl Hulse of The New York Times and Spencer Ackerman of TPMMuckraker, Reyes' Senate counterpart John Rockefeller, D-W.Va., is open to offering retroactive immunity to telecommunications companies that may have broken the law by allowing the government to conduct electronic surveillance as part of the Terrorist Surveillance Program. That's a non-starter for libertarian-leaning House members, who kept such a provision out of RESTORE.
Rockefeller spokeswoman Wendy Morigi told Ackerman that immunity is "absolutely under discussion. ? There are lot of discussions pro and con, and he's looking at it seriously."
Yesterday, speaking on CNN, Senate Judiciary Committee Chair Patrick Leahy, D-Vt., and ranking member Arlen Specter, R-Pa., expressed their reluctance to grant blanket immunity, but that doesn't mean the provision won't appear in the Senate bill anyhow.
And even if all those complications get ironed out, there's still the question of a veto. If President Bush refuses to budge on the corrective measures Democrats ask him to sign, Congress will be left with three choices: They can renew the Protect America Act in the same form they passed it in August; they can grant Bush even greater spying power; or they can let the August bill lapse altogether.
The last option will unleash a political firestorm. Democrats will be accused of killing Americans, and FISA will revert to its pre-August state, with all the well-documented inefficiencies and inadequacies that backslide entails.
