Democrat leaders in the House and Senate are invoking the threat of “Big Brother” in an attempt to undo the changes Congress made to the Foreign Intelligence Surveillance Act (FISA) before leaving for August recess.
The modifications, which will expire in just six months, patched the so-called “terrorist loophole” in FISA that was hampering the intelligence community’s collection of information on terrorists in foreign countries. Intelligence agencies were spending critical time seeking court approval for surveillance of foreign persons outside the United States due to outdated provisions in FISA.
Because the new law is only a temporary fix, the Bush Administration could face a steep hurdle to make it permanent. Many of the moderate or Blue Dog Democrats who supported the changes will face pressure from House Speaker Nancy Pelosi (D.-Calif.) and Senate Majority Leader Harry Reid (D.-Nev.) when it comes to the floor next time.
Pelosi has already directed Judiciary Chairman John Conyers (D.-Mich.) and Intelligence Chairman Silvestre Reyes (D.-Tex.) to draft a new version before the law expires. “Many provisions of this legislation are unacceptable, and, although the bill has a six month sunset clause, I do not believe the American people will want to wait that long before corrective action is taken,” she wrote in an Aug. 4 letter, shortly after the House vote.
Armed with fresh evidence that al Qaeda and other terrorists still pose a significant threat to the United States, Director of National Intelligence Michael McConnell oversaw an intense lobbying effort in the days before Congress adjourned that convinced enough Democrats to support the revisions. Pelosi and Reid, who promised to act on FISA before the August recess, had no choice but to accept the result when their alternatives failed.
Forty-one House Democrats backed the Republican-drafted legislation, which passed 227-183. Reid lost 16 Democrats in the Senate, including two, Mary Landrieu (La.) and Mark Pryor (Ark.), who face potentially tough re-election fights in 2008. Also among the 16 were four Senate newcomers: Bob Casey Jr. (Pa.), Amy Klobuchar (Minn.), Claire McCaskill (Mo.) and Jim Webb (Va.). The Senate bill passed on a 60-28 vote.
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.