This is from last night’s Congress Daily PM dispatch by Chris Strohm and Christian Bourge:
To break an impasse over legislation overhauling the Foreign Intelligence Surveillance Act, House Democratic leaders are considering the option of taking up a Senate-passed FISA bill in stages, congressional sources said today. Under the plan, the House would vote separately on the first title of the bill, which authorizes surveillance activities, and then on the bill’s second title, which grants retroactive legal immunity to telecommunications companies that aided the Bush administration’s warrantless electronic surveillance activities. The two would be recombined, assuming passage of both titles. In this way, Democratic leaders believe they can give an out to lawmakers opposed to the retroactive immunity provision. Republican leadership sources said their caucus would back such a plan because not only would it give Democratic leaders the out they need, it would provide a political win for the GOP. It remains to be seen if such a move will placate liberal Democrats who adamantly oppose giving in to the Bush administration on the immunity issue.
House Speaker Pelosi said that Democrats hope to have a solution worked out by March 8. But she also indicated that Democrats want language included in the bill that would clarify that FISA is the exclusive means under which the government can conduct electronic surveillance. The White House and some congressional Republicans have argued that the 2001 authorization of military force to launch the war on terrorism gave Bush the authority to conduct warrantless electronic surveillance. They also say the president has inherent constitutional authority to do what is necessary to protect the country. Senators have battled over whether to include so-called exclusivity language in their FISA bill. In the end, an amendment from Sen. Dianne Feinstein, D-Calif., that states FISA is the exclusive means for conducting electronic surveillance failed to win a needed 60 votes in a roll call that split mainly along party lines.
This is not a good sign. If Title I and Title II of the Senate-passed Intelligence Committee bill are voted on separately in the House, the Blue Dogs have the ability to vote with the Republicans and pass the Senate bill in two parts. Title II, of course, is where retroactive immunity for big telecoms resides. And I’ll repeat – this style of voting on the Senate bill would make it more likely the retroactive immunity would pass through Blue Dog Democrats voting with the Republican caucus in the House.
I don’t know why the House leadership, who has been steadfast against the bad Senate bill, would suddenly let the Senate bill the one that is voted on to move forward. It makes no sense. The overwhelming majority of House Democrats don’t want a bill that includes retroactive immunity and bad wiretapping oversight. But the Senate bill that would be receiving votes under this deal would be just that. Clearly in the closed-door negotiations with pro-Constitution Democrats, Jay Rockefeller has refused to budge.
It’s also interesting that, in the end, the main sticking point in Title I is the Senate bill’s failure to include exclusivity. This fight remains one area where the Bush administration is most clearly seeking congressional approval for their radical theories of executive power. It would be an epic failure if the House passed legislation that did just that. FISA says it is the exclusive means for conducting electronic surveillance on Americans. That law did not change when George W. Bush took office and it did not change on September 11, 2001. Exclusivity is one of the key reasons that Bush’s warrantless wiretapping program was and is illegal. We cannot let the law be changed to legitimize Bush’s theories of a unitary executive.
While it’s still possible, we need to let the House hear from us to say we don’t want retroactive immunity. Not in the Senate passed bill. Not in any other. Use the contact tool from CREDO Action to tell your rep to oppose retroactive immunity, no matter how it’s presented to them.