FISA negotiators near deal

House and Senate negotiators are on the verge of striking an accord on a contentious overhaul of the 1978 Foreign Intelligence Surveillance Act (FISA), several aides said Friday.

The development comes after a Thursday meeting with Senate Intelligence Committee Vice Chairman Kit Bond (R-Mo.), House Majority Leader Steny Hoyer (D-Md.), House Minority Whip Roy Blunt (R-Mo.), Senate Intelligence Committee Chairman Jay Rockefeller (D-W.Va.) and Bush administration officials, according to two aides.

{mosads}But aides said the deal is not final because negotiators have to vet the language within their respective caucuses. One person familiar with the talks said if there are no major objections, the deal could be announced next week.

Negotiators from both sides appear to agree on the stickiest issue in the debate: whether to give retroactive immunity to telephone companies that cooperated with the government’s warrantless surveillance program.

The proposed agreement would give federal district courts the authority to review whether civil liability protections should be afforded to those companies that received orders from the administration to wiretap phones after Sept. 11, 2001, aides said Friday.

That plan differs from the approach Republicans offered before Memorial Day to give that authority to the secret court that operates under the FISA. But the deal allows a court to look at a lower standard of evidence to determine if companies received such orders — a provision sought by the GOP, according to one person involved in the talks.

The language will likely anger people on both sides of the debate. Initially, Republicans insisted on full retroactive immunity for the telephone firms, saying companies would be less likely to participate if they had to face lawsuits for cooperating, and that would undermine national security.

But Democrats contend that blanket immunity is not needed if the Bush administration and the phone companies did not break the law when eavesdropping on American citizens. About 40 lawsuits are pending nationwide against the companies, which they say could cost them billions of dollars.

Civil libertarians are certain to object to the deal over concerns that courts may simply rubberstamp immunity orders without looking at the possibility that companies broke the law.

Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, said the deal appears unconstitutional.

"Whatever silk purse Hoyer tries to make of Bond's sow's ear and no matter how they try to sell it, the end result of all this negotiating will be exactly what the administration has wanted from the beginning – FISA rewritten to delete court oversight of surveillance and immunity for its pals at the telephone companies,” Fredrickson said.

Aides for the negotiators said that progress was being made to reach a deal to protect civil liberties and ensure the surveillance program continues.

Shana Marchio, spokeswoman for Bond, said that Thursday's negotiations marked the fourth round of talks between her boss, Hoyer and Blunt. She said this meeting also included Rockefeller, staff for House committees, the White House and the intelligence community.

"A lot of progress was made on a terrorist surveillance bill that enables this critical program to go forward while protecting the privacy rights and civil liberties of Americans," Marchio said.