No Compromise On Wiretap Bill

Rep. Heather A. Wilson says a House-Senate compromise bill would be difficult to reach before the recess.
Rep. Heather A. Wilson says a House-Senate compromise bill would be difficult to reach before the recess. (By Win Mcnamee -- Getty Images)
By Jonathan Weisman and Carol D. Leonnig
Washington Post Staff Writers
Wednesday, September 27, 2006

A high-profile Republican effort to clarify the legality of President Bush's warrantless wiretapping program will almost certainly not pass before Congress recesses at week's end for the fall campaign, leaving the legislation in deep trouble, congressional leaders conceded yesterday.

Efforts to reach agreement on a single version of the bill that could be brought before the Senate and House this week foundered yesterday on the insistence of key House members that they vote on a House version that they say is significantly tougher than the Senate's. House Republican leaders are deferring to the House bill's primary author, Rep. Heather A. Wilson (R-N.M.), who is locked in one of the tightest House election contests of the season.

"I don't think that's possible," Wilson said of the House and Senate reaching agreement on a compromise bill. "Our focus has to be on passing the House bill."

House Majority Leader John A. Boehner (R-Ohio) said GOP leaders would still like to pass a bill this week "but that may be a bit of a stretch."

Failure to act this week would jeopardize Congress's ability to ever authorize the National Security Agency's surveillance efforts, which Republicans see as vital to national security but which many Democrats and civil libertarians regard as unconstitutional. GOP leaders say that if legislation is not completed, they will revisit the issue in a lame-duck session of Congress that will be convened after the Nov. 7 elections.

But most independent political analysts expect Democrats to pick up between three and five seats in the Senate, and possibly more. Without the political pressure of a looming election and with a strengthened hand coming in the next Congress, Senate Democrats would probably filibuster Republican wiretapping legislation this year, congressional Democrats said.

Rep. Jane Harman (Calif.), the ranking Democrat on the House Permanent Select Committee on Intelligence, warned that a bill could still appear Friday night or Saturday morning, appended to other legislation. But she added, "If it doesn't happen at 3 a.m. Saturday, it will be become much harder for them to pass a bad bill."

Bills to authorize warrantless wiretapping and military commissions were supposed to pass this month as the twin centerpieces of a legislative agenda designed to bolster the party's national security credentials. But the surveillance bill was in trouble from the start.

White House officials never thought they needed congressional action to continue the NSA's warrantless surveillance, but Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) and White House officials did work out legislation that would allow but not require the administration to submit the program to a secret court for constitutional review. Specter maintains that his bill would restore judicial review to a program that President Bush has made the domain of the executive branch alone.

But criticism of the Specter measure has been bipartisan. Opponents say a broad review of the program's constitutionality will do nothing to restore oversight of individual wiretaps. And recent changes to the bill have raised still more questions.

At administration insistence, Senate negotiators agreed to steer legal rulings about the president's broad surveillance to the Court of Review, a little-known appeals court created by the Foreign Intelligence Surveillance Act. The three-judge court has rendered only one opinion in its 30-year history, and that opinion included its view that the president has inherent constitutional authority to eavesdrop without warrants as part of the U.S. effort against terrorism.

The Court of Review's commentary in its 2002 ruling has become the language cited by Bush and Attorney General Alberto R. Gonzales as proof the program passes constitutional muster.

Members of the Senate and administration have repeatedly said in public statements since June that their surveillance legislation would submit the president's program to the Foreign Intelligence Surveillance Court for review. But the FISA court and the Court of Review are quite dissimilar.

The 10-member FISA court does a brisk, nearly daily business considering whether to allow the government secret warrants to surveil terrorism and international-spying suspects. And several of the FISA court's members were disturbed last year to learn the president had authorized spying behind the court's back; some have pointedly questioned the program's legality in private discussions with top Justice Department officials.

Wilson drafted legislation that she said would restore some congressional oversight to the wiretapping program and maintain the Foreign Intelligence Surveillance Court's right to issue warrants on wiretaps.

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