What's Next for FISA?

The first year of the 110th Congress closed with a great deal of spilled blood, and few victories for liberals. In just the last weeks of the past session, Democrats fought a series of gladiator battles over issues like energy, the Iraq war, and government spending -- and lost every one of them in the Senate. But on the one issue that Democrats had by-and-large decided to cede to their opponents, they were ... still unable to get very far.

That issue was the Foreign Intelligence Surveillance Act. And the Democrats' failure was actually great news to civil libertarians, who widely agree that the bill that nearly passed the Senate last month would have sold out Americans' constitutional rights for illusory security gains and the protection of telecommunications firms that knowingly broke the law. Now, as Congress prepares to reconvene, it's anybody's guess what the next chapter in FISA's troubled saga will be.

In a valiant, Internet-born effort at year's end, Sen. Chris Dodd, D-Conn., scuttled the now-leading version of the bill, forcing Senate Majority Leader Harry Reid, D-Nev., to spike a planned vote. But Reid promises that FISA will be a high-priority issue when Congress reconvenes.

In the last months of 2007, the Senate Judiciary and Intelligence committees prepared competing FISA-reform amendments, each intended to replace a temporary version of the law that passed in August but will expire in February. Both bills contain provisions that civil liberties groups object to, but the Intelligence Committee's version has caused far greater alarm.

It includes provisions that retroactively immunize telecommunications companies that helped the government illegally spy on Americans, and that allow the government to issue basket warrants when targeting foreign communications -- a practice that could ensnare American citizens in unconstitutional surveillance.

The Intelligence Committee's bill enjoys its greatest support among congressional Republicans, the Department of Justice and the White House. But Reid chose to advance it over the Judiciary bill in December -- despite the vocal objections of more than a dozen Democrats and an informal "hold" placed upon it by Dodd. ("Holds" represent a senator's threat to filibuster). In response to Reid's decision and at the behest of civil liberties activists across the Internet, Dodd employed an array of parliamentary maneuvers to block the bill's route to a floor vote.

Reid has suggested Dodd is less likely to obstruct the bill once he's no longer in the presidential race. Perhaps. And even if Dodd again attempts to hold the bill hostage, he'll have a tough task sustaining his filibuster long enough to outlast his opponents.

But with the current FISA amendments set to expire in weeks, time will nonetheless be on the civil libertarians' side. Whatever comes next in this long and sordid tale, it'll have to happen fast.