The Bush Administration’s next test is convincing those Democrats to make the FISA fix permanent—a stiff challenge given the reaction of the party’s liberal wing in the wake of the vote. Both Pelosi and Reid faced criticism from liberal activists loathe to hand the White House a victory, even on the issue of terrorist surveillance.
Although the changes to FISA will go a long way toward improving intelligence collection, the effort to undo them is already taking root among liberal interest groups and left-wing blogs. The American Civil Liberties Union has warned that our democracy is threatened, and the popular liberal blog DailyKos has posted a list of FISA “cowards”—the Democrats who supported the modifications.
Liberals have also ratcheted up attacks on Republicans. Citizens for Responsibility and Ethics in Washington filed a complaint with the Department of Justice accusing House Minority Leader John Boehner (R.-Ohio) of leaking classified information during an interview on Fox News. Boehner dismissed the accusation, noting that he said nothing more than what had already been publicly disclosed by the attorney general and director of national intelligence. CREW’s complaint, nonetheless, serves as distraction.
But Republicans aren’t turning away from the fight. They lost just two House members on the FISA vote and are working with the Bush Administration to ensure the language included in the new law is preserved and strengthened. Liberals are expected to challenge a provision that bars liability against telecom companies, which have faced lawsuits from the ACLU for providing support to the government in its terrorist surveillance efforts.
Part of the strategy will be setting the record straight. Rep. Pete Hoekstra (R.-Mich.), ranking member on the Intelligence Committee, wrote a four-page letter to the New York Times, chastising the paper for resorting to “scare tactics” that “knowingly and willfully” misrepresent the law. Hoekstra has been equally aggressive toward some of his Democrat colleagues in the House, accusing them of “demonizing Attorney General Alberto Gonzales and politicizing national security” rather than addressing FISA reforms.
Even McConnell, who has 40 years in the intelligence community and served as director of the National Security Agency under President Clinton, has fought back to correct the record. In a letter to Reid, McConnell clarified misconceptions about the law. One such claim liberals have invoked in the spirit of “Big Brother” is that intelligence agencies can listen in on Americans. Not so, said McConnell. He said a warrant would be needed to conduct such surveillance. “That was the case before this enactment and will remain the case after,” McConnell wrote.
Some conservatives, meanwhile, have privately told the White House it has already gone too far in compromising with liberals. These conservatives argue that the permanent legislation should go even further in updating the flawed FISA framework by limiting the ability of lawyers to interfere with vital military operations during a war.
With so much to do when Congress returns in September, it’s unclear how quickly Democrats will move to undo the changes to FISA. But if they put forward legislation similar to what they offered before—which only added bureaucracy to the process of intelligence collection—it’s unlikely to get any support from Republicans. (Democrats refused to even consult McConnell in advance of drafting their FISA bill.) Meanwhile, the Bush Administration will most certainly keep close watch of the 57 Democrats who voted in favor of the changes to make sure they don’t begin to waver.