In today’s New York Times, Eric Lichblau has an article going about how the current telecom debate is not focused on any security related matters, but instead hinges on granting retroactive immunity to telecoms that helped the Bush administration spy on Americans.

The warnings from President Bush and his senior aides have grown more urgent over the last few weeks, now that Congress has let a temporary wiretapping law expire. But there is little sign of anxiety among many intelligence and phone industry officials.

At the Pentagon and the military’s Central Command, senior officials gave no indication of any heightened concern about the lapsing of the law. In Congress, staff members with access to updated briefings said they had not been given any specific information about lost intelligence that might endanger national security. And in the telecommunications industry, executives said it was largely business as usual.

Indeed, for all the heated rhetoric in Washington about the government’s wiretapping powers, the debate over what a new surveillance law should look like has little to do with the present or the future and almost everything to do with the past.

At its crux, the debate is about whether Mr. Bush can give retroactive legal protection to telephone carriers that cooperated in the program of wiretapping without warrants he authorized weeks after the Sept. 11, 2001, attacks, a program that critics charge was illegal. [Emphasis added]

As long as intelligence professionals are not telling Congress that our ability to conduct electronic surveillance is not being impaired, I don’t see how the Bush administration will be able to pressure Congress into caving on immunity legislation. When the debate is solely hung up on immunity, it’s not likely to get Democrats to feel the need to pass legislation appeasing Bush and move on. Yesterday Republicans again refused to pass an extension of the Protect America AT&T Act, so the onus for new legislation is clearly not urgent, as the only additive to the law would be retroactive immunity. All other surveillance can continue for up to a year and new surveillance can begin up to 72 hours before a court order is required.

This system – FISA – has worked since 1978 with no known problems. It will continue to work tomorrow and the next day.

Lichtblau’s article makes the story in Congress Daily look more like a trial balloon. If the security apparatus isn’t driving a call for new legislation, I don’t see the Democrats in the House – who have been very strong in their opposition to the SSCI bill and retroactive immunity – caving to allow votes on bad legislation. Time will tell, but for now it’s important that Democrats in Congress listen to what the intelligence community is not saying to them about the state of our surveillance operations. All is well following the sunset of the Protect America AT&T Act and things continue to work under FISA. The need is for Congress to work on legislation that upholds the Constitution, ensures oversight of surveillance operations, and does not grant retroactive immunity to the big telecoms that helped the Bush administration illegally spy on Americans.

McJoan at Daily Kos:

Now it’s not at all clear that this is legislative effort is actually happening or whether it’s a trial balloon or if it’s real. But whatever it is, it would be phenomenally stupid to try to enact. First, the House has already voted on the Senate bill, the Protect AT&T Act, and rejected it. When that happens, you go to conference. When the Republicans refuse to cooperate in conference, you do it without them or table action on the bill.

For once, real Democrats in the House have the upper hand. They don’t need to do anything on FISA. They certainly don’t need to cave the administration to Protect AT&T.

Re-reading the Congress Daily PM article, it does look like this could be a trial balloon. In that case, here’s the response to the trial: it’s a bad idea and Dems should not follow the tact of splitting the Senate bill in two. The House should not consider any solution a solution if it is based solely on the Senate-passed bill. That bill is a failure and, as McJoan notes, the Dems have the muscle to put something much better forward.

Blogged with Flock

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.