Congress wrestles over spying bill

Congress is on the verge of ending a year-long struggle with the White House over a contentious intelligence surveillance bill.

In one of the toughest votes of the 110th Congress, the House on Friday backed a compromise that expands the government’s capacity to eavesdrop without a warrant. The Senate this week is expected to do the same.

Most House Democrats did not back the compromise. But in a break with previous statements, their leaders did.

“So again, a difficult decision for all of us,” said Speaker Nancy Pelosi in a floor statement before the vote. “If not good enough for some,” the bill is “certainly preferable to the alternative that we have, which is the Senate bill, which must be rejected,” she said.

At issue between the Senate and House versions is whether to grant legal immunity to telecommunication companies for their role in the secret surveillance program after the 9/11 attacks — a key White House demand. The Senate version of the bill includes immunity for telecoms.

Under the terms of the House bill, a federal district court will decide whether immunity is granted. Only companies, not government officials, could be shielded.

“The issue really was whether we would have a compromise that would involve the court in determining whether or not the telecom companies had received justification … or simply a bill that gave them immunity,” said House majority leader Steny Hoyer (D) of Maryland after Friday’s vote.

The bill would protect companies that can show they had received assurances from the executive branch that the program was legal and authorized by the president.

The bill passed by a vote of 293 to 129, with 105 House Democrats joining all but one Republican in favor of the bill and 128 Democrats, including most committee chairs, opposing it.

“This bill is a fig leaf, granting blanket immunity to the telecom companies for possibly illegal acts without allowing the courts to consider the facts or the law,” said Rep. Jerrold Nadler (D) of New York, who chairs the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, in a statement after the vote.

Trolling the aisles during the vote. Rep. José Serrano (D) of New York, who opposed the bill, told colleagues voting for it: “Don’t worry, government will give us back our freedoms later.”

“I was in New York when the terrorists attacked the towers,” he said afterward. “If they terrorize us into stepping on the Constitution and throwing it away, don’t they win?”

On the Senate side, opponents of the House bill see little prospect of stopping it. “It’s the election cycle that we’re in,” explained Sen. Christopher Dodd (D) of Connecticut. “Senators are thinking about November and January next.”

On the campaign trail, Sen. John McCain of Arizona, the presumptive Republican nominee, endorsed the House compromise, as expected. “For months, House Democrats, the ACLU [American Civil Liberties Union], and the trial lawyers have held up legislation to modernize our nation’s terrorist surveillance laws. Today, the House passed a compromise bill to end this impasse,” he said in a statement.

Sen. Barack Obama (D) of Illinois, in a break with many liberal party activists, said he would support it.

“Given the legitimate threats we face, providing effective intelligence-collection tools with appropriate safeguards is too important to delay,” he said in a statement after the House vote.

“So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program,” he added.

The votes in favor of the bill by top House Democrats, including Speaker Pelosi, majority leader Hoyer, and majority whip James Clyburn (D) of South Carolina, could lend Senator Obama political cover in this week’s vote, say aides on both sides of the aisle.

In the end, House Democrats didn’t have the votes to keep a compromise off the floor indefinitely.

In the run-up to the vote, 21 conservative “Blue Dog” Democrats sent party leaders a letter insisting on immunity for telecom companies.

With the Blue Dogs, “there were 230 votes to bring the Senate bill [including immunity] to the floor,” said Hoyer after the vote. That calculus forced a compromise that many party leaders had been reluctant to make.

“They didn’t have the votes to keep the Senate bill off the floor indefinitely,” said Rep. Roy Blunt (R) of Missouri, the Republican whip.

Democrats, including their likely presidential nominee, are “very hesitant to reinforce the post-Vietnam era image that Democrats are not prepared to defend the country,” said Mr. Blunt, the lead Republican negotiator on the bill.

Another element that sealed a compromise deal was the inclusion of language declaring the “exclusivity” of the Foreign Intelligence Surveillance Act (FISA) as a legal basis for surveillance for intelligencegathering purposes. This provision, first introduced by Reps. Adam Schiff (D) of California and Jeff Flake (R) of Arizona, aimed to rein in President Bush’s claim of constitutional authority to eavesdrop on Americans without court approval — and in violation of the FISA law.

“Congress is set to pass a measure that says otherwise,” says Congressman Schiff.

On the Senate side, the chief opponent of the House compromise, Sen. Russ Feingold (D) of Wisconsin, says that while there are some improvements in the bill, “The proposed FISA deal is not a compromise; it is a capitulation.”