Prospects fading fast for FISA deal by recess, aides say

Despite weeks of behind-the-scenes negotiations, it appears increasingly likely that House and Senate lawmakers will head into the Memorial Day recess this weekend without an agreement to rewrite the nation's electronic surveillance laws, congressional aides conceded Monday.

Comment on this article in The Forum.Aides held out faint hope that a last-minute breakthrough could be achieved to overhaul the Foreign Intelligence Surveillance Act. But privately, they expressed frustration and pointed fingers over the lack of a final deal.

"This issue more than any other could go up in flames, or we could have a deal," said one top Democratic aide close to the situation. "We're clearly not going to get anything done here before the [Memorial Day] break but we are still trying to divine a way to get this done and move it off the table."

Looming in the background is a threat from moderate-to-conservative Blue Dog Democrats in the House to force a vote on a Senate-passed FISA bill, which includes a Bush administration-backed provision granting retroactive legal immunity to telecommunications companies that have helped it conduct electronic surveillance of U.S. citizens without warrants.

The Blue Dogs are not expected to act immediately on their threat to submit a discharge petition to bring the Senate bill to the House floor for a vote. But as more days roll by without a deal and political heat intensifies over the summer, the chances of them making good on the threat will increase.

House Majority Leader Hoyer had previously said he wanted to reach a compromise on FISA by the Memorial Day recess. GOP and Democratic aides cited several reasons why that has not happened.

Late last week, Hoyer sent Senate Republicans a list of provisions that House Democrats want included in a final bill, aides said.

Hoyer's proposal took Senate Republicans by surprise. A Republican aide called the proposal "a step backward."

Before Hoyer's proposal, Senate Republicans believed that only two main issues needed to be resolved, and that they were close to reaching an agreement on them with House Democrats.

One issue dealt with having the secret FISA court determine if the telecom firms should be granted retroactive immunity from lawsuits for their role in the administration's warrantless electronic surveillance activities since the Sept. 11, 2001, terrorist attacks.

The second issue centered on allowing the FISA court to review the administration's procedures and certifications for surveillance operations.

"We're basically there on those two," an aide said.

But Hoyer's proposal included other provisions, some of which had already been defeated during votes in the Senate, aides said.

One provision, for example, would allow the FISA court to assess if the government is complying with so-called minimization procedures, which limit the amount of information collected and stored on Americans incidental to the surveillance target.

Another provision contains language making FISA the exclusive means under which the government can conduct electronic surveillance.

"If we could just cut the list [of provisions] off, we'd be done right now," the aide said. "We're not going to reconstruct the whole bill and recreate it from ground zero."

House Democrats also face their own internal Caucus disputes over FISA.

After months of complaints about her lack of proactive involvement behind the scenes, Caucus and leadership sources said House Speaker Pelosi stepped into the fray last week.

She told several leading House liberals -- including House Judiciary Chairman John Conyers and Reps. Maxine Waters, D-Calif., and Barbara Lee, D-Calif., -- in a closed-door meeting that included Blue Dogs that a compromise would likely be needed on the issue of granting immunity to the telecoms. The liberal Democrats have been unyielding in their insistence that telecoms be held accountable for their actions.

Pelosi is said to have argued this was needed to get a guarantee that the regulation of electronic eavesdropping would be the exclusive purview of the FISA court.

Leadership and Blue Dog sources said Pelosi has made it clear that exclusivity is the most important issue for her in negotiations heading forward.

"I am sure I could come up with a memo on how she could have handled this better," said a senior Democratic aide. "I wish she would have handled it faster, but it is what it is."

A Pelosi spokesman said negotiations with the Senate and White House are continuing.

"House Democrats are committed to passing legislation that protects our nation's security and our constitutional rights, and we are confident we can achieve both those goals," he said. "Last week's meeting, where varying options and views were discussed, was one of many that has taken place over the course of the negotiations."