The vote just came down. The FISA Amendments Act passed 68-29. What follows will no doubt be a grueling battle in a conference committee between the House and the Senate. Among those on hand will (most likely) be the chairmen of the four committees (the Senate and House Judiciary and Intelligence committees) with jurisdiction over FISA, three of whom are philosophically much closer to the House bill than the Senate bill. At that conference, for all intents and purposes, one of several things can happen: The senators will accept the House language (unlikely), the representatives will adopt the Senate language (slightly more likely) or a new bill, using language from both bills, will emerge (quite likely). That bill would have to be passed by both houses.
The problem is that getting a Senate-like bill through the House will be much easier than getting a House-like bill through the Senate–According to Senate Minority Leader Mitch McConnell, 21 Blue Dog Democrats have sent a letter to Speaker Pelosi endorsing the Senate bill. House leadership can stick to its guns and say “no way” to the radical Senate provisions, but time is running out on the 15-day extension to the old amendments, and doing nothing will touch off the sort of national security fight that Democrats have been avoiding for the entirety of the 110th Congress. Unless they find that willingness, it looks very much as if a fairly terrible piece of legislation will ultimately be signed into law.
There are a few positive developments. House Judiciary Committee chairman John Conyers has sent White House Counsel Fred Fielding a letter saying that the documents the administration has provided thus far do not justify retroactive immunity. I am writing to follow up on previous letters and requests of January 5, 2006, February 8, 2006, July 30, 2007, September 11, 2007, October 15, 2007, and October 16, 2007, requesting information and documents from this Administration concerning the warrantless surveillance program, known as the terrorist surveillance program (TSP), first disclosed by the New York Times on December 16, 2005, and related matters. Although some of the requested materials have been provided to some Judiciary Committee members, much of the information has not, and it is crucial that this material be produced as promptly as possible so that Congress may fulfill its legislative and oversight responsibilities. Indeed, review and consideration of the documents and briefings provided so far leads me to conclude that there is no basis for the broad telecommunications company amnesty provisions advocated by the Administration and contained in the Foreign Intelligence Surveillance Act (FISA) bill being considered today in the Senate, and that these materials raise more questions than they answer on the issue of amnesty for telecommunications providers. In order to more fully understand and react to the Administration’s request for broad-based and retroactive amnesty for telecommunications firms, who may be in a position to divulge information concerning misconduct by Administration officials, it is imperative that your provide this information to us as promptly as possible, as we have been asking for many months on numerous occasions. Additionally, Senate Judiciary Committee Chairman Patrick Leahy seems to be extremely upset about the treatment he and his committee have received from Intelligence Chair Jay Rockefeller and the Republican leadership–and as such he also have come into full support of Chris Dodd and Russell Feingold’s efforts. He will likely be part of the conference committee. Meanwhile, Dodd himself has indicated that he’ll filibuster any bill that emerges from the conference committee if it contains the immunity provision. So there’s plenty more to come.