Spy trouble for Democrats

The Baltimore Sun

WASHINGTON -- Democrats plan to unveil a new surveillance proposal today, attempting to overhaul portions of a law that they passed under political pressure in August. To prevail, however, they must persuade liberal lawmakers and President Bush to accept the measure.

With the 2008 campaign looming, Democratic leaders find themselves largely playing defense in this battle over controversial spy measures. They are trying to avoid both Republican attacks that they are promoting lax security laws and Democratic charges that they are caving in to Republican pressure.

Privately, some Democratic congressional aides are jittery about being outmaneuvered -- again -- by the Republicans.

It's with good reason, said Bruce Fein, a former Reagan Justice Department official and outspoken critic of the Bush administration's expansion of spy power, because the post-Sept. 11 pressures facing lawmakers favor the Republicans in this equation.

"You'll never be criticized for spying too much, only for spying too little," he said. That is why he expects the coming surveillance debate to mirror the one last summer, adding: "It's going to be the same scenario all over again."

The Democrats' new proposal would require the government to obtain court approval every year for intelligence programs that monitor communications between the United States and abroad for possible national security threats, according to congressional aides and sources who have seen the plan. This compromise approach aims for the "sensible center," as one aide who helped draft the proposal put it.

The court would review the procedures for selecting spy targets and safeguarding privacy.

It would require quarterly audits of the surveillance activities approved by the court, and the law would be renegotiated at the end of 2009. It would also require that Congress receive the same data on past spy programs.

The law passed in August, the Protect America Act, expires in February, so some version of this proposal is likely to pass by then.

The Protect America Act allows intelligence agencies to monitor, without a warrant, the communications of all foreign intelligence targets, not just suspected terrorists, including phone calls and e-mail to and from individuals in the United States.

The law requires the government to submit its procedures to a secret national security court, but it severely limits the court's ability to rule on their legality.

Bush has called on Congress to retain the Protect America Act and provide new legal protections for companies that have assisted the government since the 2001 attacks.

The Democratic proposal does not include a legal immunity provision, the congressional aide said, because the administration has not given lawmakers the documents on the origins of the controversial warrantless surveillance program. The White House told lawmakers it will provide that information Oct. 22, a week after the Democratic bill is to be debated on the House floor.

Senate Democrats, who plan to introduce their plan next week, are considering ways to include some version of legal immunity.

Democrats, many suffering from buyer's remorse over the law passed in August, have said they want to revise the law now to avoid another round of politically driven decisions in the middle of a presidential primary season that begins in January.

Some lawmakers, however, said political calculations continue to drive the debate over this obscure corner of the law, which has become the latest battleground in the fight to claim the national security mantle.

"The politics has trumped the substance, so far," said Rep. Jane Harman, a California Democrat who heads the Homeland Security subcommittee on intelligence. "The administration has played the fear card brilliantly."

Meanwhile, Republican Sen. Christopher S. Bond of Missouri accused Harman of playing politics after she charged recently that Republicans used a "bogus claim" about a possible attack on the Capitol to pressure Congress to pass the surveillance measure in August.

Behind the scenes, Republicans are acutely aware of the political opportunities within the surveillance debate, and they're angling to use it to their advantage, said a House Republican leadership aide.

Republicans, he said, would be satisfied with making the Protect America Act permanent, adding that they would have the best chance of success if they can back the Democrats against a deadline, as they did in August.

The GOP strategy is to "run out the clock," he said, adding that Republican Senate leaders and the White House are "100 percent on board" with that plan.

Republicans, the aide said, "don't mind having this fight." He added, "this is Democrat-on-Democrat violence. The [American Civil Liberties Union] hates it. Most of the members hate it, but they also realize that if they don't do it, they can be blamed in the future" for a terrorist attack.

The ACLU is warning Democrats to take charge of the debate to gain the upper hand.

"The politics is paramount here," said Caroline Frederickson, who heads the ACLU's Washington office. "If [Democrats] don't manage this process, they're going to be in a world of pain."

Democrats have been struggling to forge a consensus within their own ranks on how to modify the surveillance law, and they could soon be faced with competing proposals within the party.

Protests from the 72-member Congressional Progressive Caucus briefly delayed the release of the Democratic proposal, but they still may not be pleased with the outcome, Frederickson said. A caucus spokesman said he had not yet seen the new proposal.

The party's "left flank has to be kept happy," Frederickson warned. "If they're not, the bill's not going to pass."

As an alternative to the leadership proposal, Rep. Rush D. Holt, a New Jersey Democrat, has been circulating what Frederickson called the "gold-plated civil liberties bill." The measure addresses the central issue the administration raised: its inability to monitor conversations between foreigners without a warrant when communication lines ran through the United States.

Holt, a member of the House intelligence panel, said "minimal changes" to the laws in effect before August could fix the problem.

He has not yet decided whether to introduce his measure as a competing Democratic bill or use it as a basis for amending the Democratic leaders' proposal, according to a congressional source familiar with Holt's proposal.

Democrats also must counter Bush's argument that proposals to involve the court more weaken security, Harman said.

Harman said Republicans have oversimplified the issue to their advantage, framing the debate as being either for or against securing America. They could do that, she said, because many lawmakers do not understand the complexities of surveillance law.

"The challenge," she said, "is to get the substance understood."


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