Commentary Magazine


FISA Standoff

At a brief appearance at the White House this morning, President Bush tried to turn up the heat on the House Democrats. They have proposed an alternative version of the FISA reauthorization bill, rather than allowing a straight up-or-down vote on the Senate version (which passed by a 68-29 margin). Bush noted that the 21-day extension on the existing statute passed on Saturday and that the House measure is just a rehash of versions previously rejected by the Senate. On the hot-button issue of immunity for telecom companies, Bush explained that:

the House bill fails to provide liability protection to companies believed to have assisted in protecting our nation after the 9/11 attacks. Instead, the House bill would make matters even worse by allowing litigation to continue for years. In fact, House leaders simply adopted the position that class action trial lawyers are taking in the multi-billion-dollar lawsuits they have filed. This litigation would undermine the private sector’s willingness to cooperate with the intelligence community, cooperation that is absolutely essential to protecting our country from harm. This litigation would require the disclosure of state secrets that could lead to the public release of highly classified information that our enemies could use against us. And this litigation would be unfair, because any companies that assisted us after 9/11 were assured by our government that their cooperation was legal and necessary. Companies that may have helped us save lives should be thanked for their patriotic service, not subjected to billion-dollar lawsuits that will make them less willing to help in the future. The House bill may be good for class action trial lawyers, but it would be terrible for the United States.

Then word came that the House Republicans are going to do their part in putting the squeeze on their Democratic colleagues. They will call a “closed session” for up to one hour later today. A GOP memo explained:

The reason for calling a closed session is so that all members of the House can be present to discuss and have a candid debate on the importance of passing a long-term modernization of our nation’s foreign surveillance.

On both the merits and the politics of this, Bush and the Congressional Republicans seem to have the upper hand. Other than the trial lawyers, few Americans will be pleased to learn that, in the balance between national security and the trial bar, the Democrats apparently are more concerned about the latter.

For the Democratic presidential candidates, this poses a sticky problem. Yes, they do not want to antagonize their liberal base (or their supporters among the trial bar). But they are supposedly in favor of “smart” tactics to fight terrorism. And it’s hard to be “smart” when you’re telling phone companies not to bother cooperating with surveillance of international calls from suspected terrorists. (I wonder how many of those ex-generals and intelligence officers Democrats parade out for endorsements favor the House bill. At least one does not.)

Both Hillary Clinton and Barack Obama managed to avoid voting on the passage of the final Senate bill. But Obama voted against cloture for it, with Clinton again managing to escape a recorded vote. How long before this works its way into a John McCain ad?