Political compromise possible, even likely on surveillance issues

The House of Representatives last week thumbed its nose at President Bush by going on vacation after declining to make a surveillance law permanent — and by issuing contempt citations to former White House counsel Harriet Miers and chief of staff Josh Bolten for not cooperating in a legislative inquiry into the firings of U.S. attorneys last year.

The most substantive of the two issues had to do with electronic eavesdropping, but it wasn’t really all that substantive, and, bottom line, there is time to reach a compromise.

The current surveillance imbroglio has its roots in 2001, when President Bush authorized the National Security Agency, which does mostly electronic surveillance espionage, to do electronic eavesdropping on telephone calls between suspected terrorists overseas and U.S. residents.

This directive contravened the 1978 Foreign Intelligence Surveillance Act (FISA), which set up a court that meets in secret to consider requests for warrants to eavesdrop on U.S. residents (no warrants are required to eavesdrop on people in other countries). When the president’s program was exposed in late 2005, a flap ensued.

The legislative upshot was a law passed last August that gave the executive branch authority to do what it had been doing anyway, with some restrictions. But the Democratic majority made it only a temporary law, to expire in six months. The Senate passed a bill to renew the law on Feb. 12, but on Thursday the House declined to follow suit, so the law expired Saturday.

President Bush fulminated last week about depriving intelligence agencies of the tools they need to track terrorists, and House Democrats denounced his warnings as fear-mongering.

The major issue dividing the two sides was whether to grant retroactive immunity to telephone companies that cooperated in the initial surveillance program and could face lawsuits accusing them of violating customer privacy. Republicans and the administration generally favored the immunity; Democrats opposed.

In fact, failure to pass the legislation will make little difference for a while. Authorizations to conduct electronic surveillance under the act passed last August are good for a year, so operations begun under its authority can continue at least until August, and longer in some cases.

The political import seems to be that Democrats are less afraid than before of administration charges that they are soft on terrorism, even in an election year.

Under the 1978 FISA law, surveillance is allowed to begin before a warrant is obtained, so the need for the new law was dubious to begin with. A compromise is possible and likely.