Rockefeller’s position on FISA scrutinized

Earlier this month, Sen. Jay Rockefeller (D-W.Va.) issued a stern warning to his congressional colleagues: Support retroactive legal protections for the phone companies that participated in the Bush administration’s warrantless surveillance program or watch the nation’s intelligence become “degraded.”

Despite grave reservations from Democratic leadership and the party’s base, the powerful chairman of the Intelligence Committee got his wish, successfully pushing a landmark surveillance bill through the Senate with immunity for the telecoms.

{mosads}But with House Democrats still refusing to grant immunity to the phone companies, Rockefeller and his staff have spent the last week holding closed-door negotiations with other Democrats, who are trying to broker a compromise on a bill to overhaul the 1978 Foreign Intelligence Surveillance Act (FISA). On Monday, he coauthored with other top Democrats a Washington Post column that accused Republicans of employing “scare tactics,” including false charges that Democrats left the nation vulnerable by allowing a temporary surveillance law to expire earlier this month.

Although the senator is not hinting  what he will do, his recent actions have given hope to Democrats that they will win his support for changes to hot-button provisions in the bill — and surprised Republicans with whom he worked closely to steer the legislation through the Senate.

“I don’t understand that,” Sen. Kit Bond (R-Mo.), the vice chairman of the Intelligence Committee and cosponsor of Rockefeller’s bill, said of the Democrat’s recent moves. “I think we have a very good bill, and I worked very closely with him. And there are enough votes in the House to pass our bill.”

By negotiating with Rockefeller, Democrats say, they can blunt GOP attacks that the House’s choice to press its own bill — which does not contain immunity — rather than rubberstamp the upper chamber’s bill will leave the nation unsafe.

“He’s genuinely trying to work out our differences with the House, and he’s put a lot of time in it,” said Senate Majority Whip Dick Durbin (D-Ill.), who sits on the Judiciary Committee and strongly opposed his chamber’s bill. “I think he’s trying to find a way out of this which still protects our country, and preserves our Constitution.”

Rockefeller has said he is trying to press Democrats to back the Senate’s approach on telecom immunity, but also that he is uncertain what the negotiations will yield and whether he would support any changes. He has warned Democrats that “they better be careful” in what they wish for because the bill “has got to get signed” into law by a president who has said he would veto any surveillance measure that does not have liability protections for the telecoms.

But the senator is not ruling out supporting a bill that does not mirror the Senate’s approach. His decision to remain open about the issue suggests to House-bill supporters that he might be open to a plan closer to their version, given Rockefeller’s strong statements about the issue in the past.

Earlier this month, Rockefeller said on the floor: “What people have to understand here is that the quality of the intelligence we are going to be receiving is going to be degraded. It is going to be degraded as the telecommunications companies lose interest.”

On Tuesday, Rockefeller would not elaborate on the discussions “because it’s destructive” to the negotiating process, which he is leading along with House Judiciary Chairman John Conyers (D-Mich.), Senate Judiciary Chairman Patrick Leahy (D-Vt.) and House Intelligence Chairman Silvestre Reyes (D-Texas). They were also the coauthors of the Post op-ed.

Rockefeller said that Republicans should not be surprised by his work with Democratic opponents of the Senate bill, saying the White House and GOP lawmakers have abandoned talks on reaching an accord.

“The door is always open to them,” Rockefeller said.

Republicans say the House should take up and pass the Senate bill because the measure enjoys majority support in Congress and the president has promised he would sign the bill into law.

Rockefeller spokeswoman Wendy Morigi said that the senator “will continue to consider new proposals, but will not support something that would undermine the bill.”

Conyers, Leahy and Reyes all oppose retroactive immunity, arguing that granting legal protections and wiping away about 40 lawsuits is unnecessary if the Bush administration and the phone companies did not break the law. That issue remains a sticking point, according to House Majority Leader Steny Hoyer (D-Md.).

But supporters of the retroactive immunity say companies should be protected for fulfilling a request by the government to help protect the country in the wake of the 2001 terrorist attacks. They say court proceedings would broadcast classified information to the public.

It remains unclear which proposals could win enough support to garner a compromise between Rockefeller and the two House Democrats. In its debate this year, the Senate rejected two proposals seen as a middle ground: one to move the court proceedings to the secret court that administers the FISA law and another to substitute the government as a plaintiff in the suits.

How the debate ultimately unfolds also remains uncertain, with both sides accusing the other of blocking an accord on the national security issue.