FISA Update: Making Progress on a Compromise

Senator Kit Bond (R-MO) held a conference call with bloggers today to detail his objections to the Senate Intelligence Committee’s Phase II report on the Administration’s use of pre-war intelligence. Not our bailiwick, so we refer you to Bond’s news release that called the report “political theatre.” (American spelling, please, Senator!)

FISA legislation does fall within our range of interests since a key question has been whether the private sector — in this case, telecommunications companies — should be subject to private lawsuits for cooperating with lawful government orders requesting assistance in monitoring foreign telecommunications. It’s a red-hot issue among the angry left, free-speech absolutists and, sub rosa, the plaintiff’s bar that sees a potential big payout.

A summary of events so far: The Senate passed S. 2248, with telecom immunity, with a strong bipartisan vote of 68-29 in February. The bill would have surely passed in that form in the House, but leadership prevented a vote on the measure and instead allowed a measure meant for political protection to pass, H.R. 3773, by a vote of 213-197. In the meantime, House Republican leadership has come back with a proposal to allow the lawsuits to be reviewed by a secret FISA court. (Republicans have also been pushing a discharge petition to force a vote on H.R. 5440, which reflects the Senate version. That’s a dead letter since Democrats won’t sign it.)

So, compromise, Sen. Bond? 

Bond: We’ve been moving ahead. I started meeting with Steny Hoyer early, in April, and we elicited from him the major objections. He came back with several objections. We worked with the intelligence community and Republicans to offer him changes, and he came back to us Friday after I had left with a counterproposal. But prior to that time, Silvestre Reyes, the House chairman of the Intelligence Committee, thought we had made a good offer.

 

So we got to the point where I believe that the intelligence community has made almost all the concessions they can take. And, we also face the problem when people who are not experienced in the work with FISA try to draft a law they forget that changing one part may change many others.

 

So we’re going to have some negotiations with them this week, and I still hope we can present something to the House that will get a majority, but probably not a majority of the Democrats of the House.

 

Q: Can you characterize for me what the Majority Leader came back with?

 

Bond: He came back with a few more change…Actually, he changed the drafting, he changed some of the drafting that make it impossible for us to work with, that there are certain things that we might be able to arrange what they wish.

 

But we are getting close and I hope that before too long we can have this finally resolved, passed, and sent to the President before the political season gets any hotter.

 

We neglected to ask specifically about telecom immunity, a dumb oversight. According to news accounts (cited here), Majority Leader Hoyer wants the lawsuits reviewed in federal district court, not before the FISA court.

UPDATE: Time’s a wastin’. From the New York Times:

 

WASHINGTON — With Congress at an impasse over the government’s spy powers, congressional and intelligence officials are bracing for the possibility that the government may have to revert to the old rules of terrorist surveillance, a scenario that some officials predict could leave worrisome gaps in intelligence.

 

And here’s a soundfile of Bond’s comments from above: bond6-9-08

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