Can Dems avoid deja vu on FISA debate? 
Senate Democrats are trying to avoid a case of deja vu when they return next year to address a controversial domestic surveillance bill, but civil libertarians and privacy activists remain pessimistic about the fate of the measure, which would spare telecommunications companies from lawsuits alleging they illegally violated customers' privacy.
Sen. Chris Dodd (D-CT) led an effort Monday to stall consideration of an update to the Foreign Intelligence Surveillance Act because of one proposal in the bill that would invalidate 40-or-so pending lawsuits against telephone and internet providers that facilitated the National Security Agency's warrantless surveillance of Americans. The Senate will return to negotiations when it reconvenes Jan. 22, just two weeks before a temporary FISA update bill expires.
The next month will see furious behind-the-scenes negotiations among various factions in the Democratic party, Senate Republicans and the White House over the controversial FISA update. Observers are predicting that immunity will remain in the bill one way or another, but the Senate's inability to quickly pass a bill this week has sparked hopes that there is room for discussion on that measure.
"I think that perhaps Sen. Dodd's efforts are going to have some fruit in that they are really going to make people come to the table," Caroline Fredrickson, director of the ACLU's Washington office, told RAW STORY.
Overall, though, Fredrickson said Senate Majority Leader Harry Reid isn't providing enough leadership on the issue, instead simply "flailing around" in how he approaches the bill.
Some wavering could be seen among Senators during a 10-hour debate over the measure Monday that ultimately ended in a stalemate.
Sen. Dianne Feinstein (D-CA) voted for an Intelligence Committee proposal that included retroactive immunity for companies that assisted with President Bush's post-9/11 warrantless wiretapping scheme, but she proposed an amendment this week that would have restored some judicial oversight to the so-called Terrorist Surveillance Program. Feinstein said she would no longer be comfortable with the Intelligence Committee's bill unless it was amended to require a review by the secret FISA court of legal justifications sent to the phone companies.
"There are enough people like Sen. Feinstein ... who don't feel comfortable (coming out) totally against immunity; there are a lot of people who would like to come somewhere in the middle," Fredrickson said.
The American Civil Liberties Union will be reaching out to constituents of wavering senators in an attempt to exert pressure when lawmakers return to their home states for the next month. Feinstein's hometown paper, The San Francisco Chronicle, has editorialized against immunity and praised the delay of FISA in a piece this week.
"One of the measure's goals must be to preserve the public's right to know," the Chronicle's editorial said. "Immunity would seal these secrets forever."
In a possible effort to avoid being backed against a looming deadline amid threats that a failure to act would endanger the country -- as happened in August -- Senate Majority Leader Harry Reid proposed a one month extension of the Protect America Act, the temporary update hastily passed this summer.
Such an extension would give senators more time to debate the measure before the PAA expires the first week of February, but it remains unclear whether such an idea is feasible.
"We're just in wait-and-see mode right now," Jim Manley, a Reid spokesman, told RAW STORY.
Fredrickson is skeptical that Republicans would go along with the temporary extension, especially since they seem to have the upper hand at the moment on the immunity front.
"I don't see why the Republicans would do it," Fredrickson said in an interview this week. "They're in a pretty strong spot, knowing the Democrats will capitulate eventually."
For his part, Reid has said he is personally opposed to the retroactive immunity proposal, but he certainly has not done everything in his power as majority leader to strike immunity from the bill. For example, instead of proceeding with the Senate Intelligence Committee's immunity-laden proposal, Reid could have had the chamber consider an immunity-free FISA update from the Judiciary Committee.
As it stands, the Judiciary measure is pending as a substitute amendment, which would require what advocates see as a difficult-to-clear 60-vote bar for it to become the stand-in bill.
"The irony is rather than taking a position in some sense on the bill, he's just trying to move the process along," Fredrickson said. "They say they want to do something that's not the Protect America Act, but i'd like to know what he thinks is so much better about the Intel bill. ... It seems like (Reid is) just kind of flailing around."
The Democrats seem unwilling to provoke a fight over national security with President Bush, who scolded Congress in his year-end press conference this week and warned that its "first priority" needs to be giving him a FISA update with telecom immunity. Further complicating matters, the Senate's return will come just a week before Bush takes the bulliest of bully pulpits afforded to presidents with his annual State of the Union address Jan. 28.
"They have to have some backbone and be willing to take what they see as a bit of a risk," Fredrickson said. "None of the people who stood up against immunity are goig to pay a political penalty."
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