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Wiretapping debate in Congress resumes Tuesday

The U.S. Senate effectively postpones debate on legislation to extend wiretapping laws--and immunize any telecos who violated Americans' privacy--for one day.

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
4 min read

A high-stakes political debate over wiretapping and immunity for telecommunications companies has been pushed back by at least one day.

In two votes on Monday, senators failed to reach the 60-vote supermajority required to curb debate and force a vote on either of two wiretapping-related proposals, one favored by Republicans and the other backed by Democrats. Each vote was 48 yea to 45 no.

That means the debate on how to rework the 1978 Foreign Intelligence Surveillance Act will continue later this week. In his State of the Union address Monday evening, President Bush is expected to press Congress to grant retroactive legal protections for telecommunications companies that allegedly opened their networks to the Feds in violation of privacy laws.

What's making this week's votes more pressing than usual is that a temporary law amending FISA expires on Friday.

That leaves Congress with three major options:

#1. Renew last August's law, called the Protect America Act, for 30 days. Both sides would get more time to maneuver. This is what the Democrats want, but Bush has threatened a veto of a temporary extension.

#2. Renew a modified version of the Protect America Act permanently, and immunize telecom companies from the legal consequences of any illegal activities they committed. This is what Bush dearly wants, and what a minority of Democrats are prepared to give him. If the president gets his way, the retroactive immunization would derail a slew of lawsuits pending against telecommunications companies, most notably the one against AT&T that's currently .

#3. Let the Protect America Act (also known as the pro-privacy option backed by the ACLU and others), expire.The argument goes as follows: The Patriot Act dramatically expanded police eavesdropping powers in 2001, and there's no pressing need to go further. FISA has worked for decades, and has long included emergency no-court-order-required wiretaps as long as proper procedures are followed.

Even though House Speaker Nancy Pelosi said last year that the Protect America Act "does violence to the Constitution," there seems to be little official interest in option #3. Senate Majority Leader Harry Reid, who voted against the measure on August 3, did something of a flip-flop on Monday, saying "none of us want the current law to expire."

Reid added, "In my 20 years in Congress, I have not seen anything quite as cynical and counterproductive as the Republican approach to FISA. The American people deserve to know that when President Bush talks about the foreign-intelligence bill tonight, he's doing little more than shooting for cheap political points--and we should reject his efforts."

So that leaves Reid and most other Democrats to rally around #1. Republicans want #2, and are being especially forceful. Bush said in last week's radio address, which he's likely to repeat in his State of the Union speech:

"Congress is now considering a bipartisan bill that will allow our professionals to maintain the vital flow of intelligence on terrorist threats. It would protect the freedoms of Americans, while making sure we do not extend those same protections to terrorists overseas. It would provide liability protection to companies now facing billion-dollar lawsuits because they are believed to have assisted in efforts to defend our Nation following the 9/11 attacks. I call on Congress to pass this legislation quickly. We need to know who our enemies are and what they are plotting. And we cannot afford to wait until after an attack to put the pieces together."

Senate Republican Leader Mitch McConnell elaborated on Bush's statement on Monday, saying Republicans will not allow the Judiciary Committee version of the legislation (which has no retroactive immunity) to become law. They want the Intelligence Committee version (which does). He said of the Judiciary version: "That bill will not, I repeat, will not become law. Reconstructing the judiciary committee bill is a pointless exercise. It's an exercise we do not have the luxury to engage in. We can get serious and pass the bipartisan Intelligence Committee product."

Note that the Intelligence Committee version goes further than merely immunizing telecommunications companies. As I wrote in October, it also would retroactively immunize e-mail providers, search engines, Internet service providers and instant-messaging services. It may cover too.

Expect the Senate to resume debating options #1 and #2 on Tuesday. So will the House of Representatives, where Democratic leaders have scheduled an afternoon vote. The House vote, especially, could call Bush's bluff--by putting him in a position to veto a law that he claims is necessary to thwart a terrorist "attack."