New House FISA Legislation

Tim Stark at CQ has new information about what House Democrats are doing on FISA. The short version is that they’re circumventing the intra-congressional negotiations for compromise legislation and taking another shot at a bill in the House. That was not entirely clear in this morning’s NY Times piece by Eric Lichtblau.

House Democrats plan to take up surveillance legislation this week that would reject White House insistence on retroactive legal immunity for telecommunications companies that have cooperated with the government in warrantless wiretapping.

The draft legislation also would establish a bipartisan commission to investigate the president’s warrantless surveillance initiative, according to a House Democratic official.

House Democratic leaders, under election year pressure from the right to give in to the White House and from the left to stand firm, hope to pass the draft bill before they leave for the two-week spring recess.

The latest proposal would sidestep stalled House-Senate negotiations over an overhaul (HR 3773) of the Foreign Intelligence Surveillance Act (FISA, PL 95-511). But most aspects of the new legislation were developed without Senate consultation, so it is unlikely to break the logjam.

Although the legislation would not confer immunity on telecommunications carriers, it would address one argument for it. Because the administration has invoked the state secrets privilege in the lawsuits against the companies, the companies maintain they are unable to adequately plead their case without the ability to introduce evidence that the administration wants shielded from court disclosure.

The House official said the new legislation would “allow courts with lawsuits pending to establish procedures to hear secret evidence.”

So this does look more likely to happen this week, before the recess (but that would make it difficult for the Senate to address it before their recess). The Senate previously rejected Feinstein’s “good faith” amendment, which is similar to the House proposal. Feinstein’s amendment was 19 votes short of passage. The new House legislation does not strike me as substantially more likely to pass. Stark notes that the House bill would include permission of blanket warrants:

The House bill would require a warrant for the surveillance of foreign targets who may be communicating with people in the United States, but would permit surveillance of a large number of such targets at once.

Between blanket warrants and punting the retroactive immunity decision to the federal courts, I find it highly unlikely that the liberal faction of the Senate – people like Dodd and Feingold – would support the House bill. Frankly, while it may be marginally more acceptable to moderates, it doesn’t look quite as good on civil liberties as the RESTORE Act or the Senate Judiciary Committee version of the bill. Of course, because it’s a better solution than the SSCI bill the Senate passed, we know Rockefeller and the Republicans will look to strip the good civil liberties provisions and add immunity back in.

We know the House and the Senate are far apart. We know Rockefeller is a huge road block. The process is progressing, but I don’t see a solution in sight, certainly not one that includes no immunity and strong civil liberties provisions.

Update:

I’ve just received clarification from a source on the Hill. The House provision on having courts handle the pending cases is not actually one of “good faith” like Feinstein’s amendment. The federal court would just evaluate whether what the companies did was legal under the law at that time. If the standard is legality and not the intentionality of the companies, then this is a much more attractive provision.

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