George Bush wants to get the stalled FISA reform bill through a stubborn Nancy Pelosi, and according to a Republican Senator, may have blinked first in the stalemate. Kit Bond (R-MO) says that Bush will modify the immunity provisions of the bill to allow a FISA court to determine eligibility for each specific telecommunications company that participated in NSA surveillance programs. The Bush administration apparently hopes that will get the bill unstuck in the House:
Sen. Kit Bond (R-Mo.), vice chairman of the Intelligence Committee, said the White House seems willing to let the FISA court help determine whether phone companies should be shielded from litigation.
Hitherto, the White House has argued that courts should not be involved at all and that Congress should instead write litigation protection into law for companies that wiretapped consumers’ conversations.
Bond said: “I think we’ve come up with some things that would involve the court, but not get to a position where it would endanger the program or the carriers.” ….
Bond said the language, drafted with White House consent, represented a “new provision we’ve come up with” on immunity. He would not give details other than to say that the FISA court would have a role. It is unclear whether the new approach will gain approval from Democratic leaders and negotiators.
Bond said the latest approach is not the one offered by Sen. Dianne Feinstein (D-Calif.) to provide immunity to companies deemed by the FISA court to have acted in good faith on the government’s national security requests.
The telecom issue got resolved in a bipartisan agreement in the Senate months ago, one that won over two-thirds of the vote in the upper chamber. That bill would win approval in the House if Pelosi allowed it to come to the floor, which is why she hasn’t yet done so. Republicans have attempted a discharge petition to get a floor vote, but only have attracted 190 signatures, far short of the majority they need to get around Pelosi.
Elections matter, and this provides a clear example. Pelosi has won this round, and the Bush administration appears to have accepted that reality. They want a resolution to this and a restoral of the NSA’s authority under the new FISA legislation, and they’re now willing to bend on court supervision for immunity grants to get it.
Properly structured, it would pose only moderate risk for the telecoms. As long as the legislation makes clear that any telecom acting under government direction that their actions were lawful will be shielded from liability, it should keep court actions to a dull roar rather than a continuous stream of trial-attorney welfare projects. The mechanism would have to be both clear and final in order to avoid repetitive court actions by restricting jurisdiction for the suits to one specific court, whether that be the FISA court or some other jurisdiction. The conditions would have to be so explicit as to force the court to grant immunity in all but clear cases of unsanctioned intrusions, which none of them would likely have done anyway.
Bush seems willintg to accept a bit of a bloody nose on this in order to reinstate the necessary FISA reforms. If Pelosi still doesn’t budge, then the White House needs to start taking this to the people, working around the Democrats in the same manner they did last year when they stalled FISA reform for most of the session.