New FISA Strategy May Pry Bill from Speaker's Grasp

House Speaker Nancy Pelosi (D-Calif.) has been the sole obstacle to passing a bipartisan bill to modernize the Foreign Intelligence Surveillance Act.  That bill, which passed the Senate by an overwhelming 68-29 margin (with both Clinton and Obama not voting), passed the Senate on February 12.

The Senate bill — which provides retroactive civil immunity for telecommunications companies — is vehemently opposed by the trial lawyers’ lobby because it would take their lucrative fees off the table and kill their political agenda.  Speaker Pelosi, in thrall to the trial lawyers, has done everything possible to kill the legislation.  After the bill passed the Senate, and because it would have passed the House by a simple majority, Pelosi blocked a House vote in mid-February.

A discharge petition to wrest the bill from Pelosi’s grip has yet to obtain the necessary 218 signatures, principally because her Blue Lapdogs — the Democrats who were elected on promises to be strong on national security matters — have refused to sign it.  As of Friday, the petition was 28 signatures short of the number needed to force the bill to the floor.

Last year, an urgent fix to FISA — dealing with the effects of a FISA court decision that extended the act’s coverage to foreign communications that passed through American computer systems — was enacted and then extended.  But the interim fix expired on February 16 because the House refused to act on a long-term fix that included the civil immunity for the telecom companies. 

The damage to US intelligence gathering has accumulated, and in August will become overwhelming.  The FISA court orders which have enabled some intelligence gathering to continue despite the expiration of the earlier bill will themselves expire in August.  At that point, Usama bin Laden can begin using pay phones.

House Republicans are considering a new strategy to break the deadlock.  A media shield bill — introduced in the House by Cong. Mike Pence (R-In)d and Rick Boucher (D-Va.) — passed the House in October by the overwhelming vote of 398-21. 

The Pence-Boucher bill, though retaining some of the flaws in the Senate bill I wrote about last week is substantively better than the Senate version. For example, rather than demanding the government prove that the person who leaked classified information had lawful access, the Pence-Boucher bill enables the government to demand a reporter reveal a source when the disclosure would identify the source of the leak in a criminal investigation.

House sources say that the combination of the House bill and the Senate FISA bill could penetrate Pelosi’s wall around FISA.  Those sources also said that the media shield bill is a “must pass” piece of legislation this year because the Democrats reportedly are under enormous pressure from their media pals to pass the bill.

One House source said that Senate Majority Leader Harry Reid (D-Nev.) has a veto-proof sixty votes lined up for the media shield bill. 

Thus there are two ways for the House to pass the essential FISA legislation before the August expiration of existing FISA court orders blinds our signals intelligence gatherers altogether.  First — and best — is for the discharge petition to obtain the needed 218 signatures to force the bill to a vote.  Second — and perhaps more likely — is for House Republicans to combine the Senate FISA bill with an improved version of the Pence-Boucher bill and obtain Pelosi’s agreement to take the bill to the floor.

These are dangerous waters.  Enactment of the Senate FISA legislation is an immediate national security need.  A media shield –though a properly-crafted one would help insure freedom of the press — is not.  To compromise one for the sake of the other could imperil both.   

Cong. Pete Hoekstra (D-Mich.) is the ranking Republican on the House Permanent Select Committee on Intelligence. Hoekstra voted for the Pence-Boucher bill.  Given his expertise and commitment to FISA, that should be enough to assuage doubts about the Pence-Boucher bill.