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Fear Rules the Day

Kane writes: "The Senate's action, days before a temporary surveillance law expires Friday, sets up a clash with House Democrats, who have previously approved legislation that does not contain immunity for the telecommunications industry. The chambers have been locked in a standoff over the immunity provision since the House vote Nov. 15, with President Bush demanding the protection for the industry. . . .

"House leaders vowed again yesterday to oppose the telecom immunity provision until the White House releases more information about the controversial warrantless surveillance program it initiated shortly after the terrorist attacks."

In a letter to White House Counsel Fred Fielding, Judiciary Committee Chairman John Conyers took a tough line: "Although some of the requested materials have been provided to some Judiciary Committee members, much of the information has not, and it is crucial that this material be produced as promptly as possible so that Congress may fulfill its legislative and oversight responsibilities. Indeed, review and consideration of the documents and briefings provided so far leads me to conclude that there is no basis for the broad telecommunications company amnesty provisions advocated by the Administration and contained in the Foreign Intelligence Surveillance Act (FISA) bill being considered today in the Senate, and that these materials raise more questions than they answer on the issue of amnesty for telecommunications providers. In order to more fully understand and react to the Administration's request for broad-based and retroactive amnesty for telecommunications firms, who may be in a position to divulge information concerning misconduct by Administration officials, it is imperative that your provide this information to us as promptly as possible, as we have been asking for many months on numerous occasions."

But just how seriously does the Bush White House have to take such a demand from the Democratic Congress? History suggests: Not very seriously.

As Greg Miller writes in the Los Angeles Times: "Senior congressional aides said there was no clear path to a compromise on the issue. But a series of recent defections by moderate Democrats in the House raises prospects that the White House position -- or something close to it -- eventually may prevail."

The Boston Globe's Charlie Savage explains why the immunity provision is so significant. It is "a major step toward closing the last forum in which critics have challenged the operation's legality. . . .

"Although news of the program initially prompted a bipartisan uproar, congressional attempts to investigate it largely petered out. Then, in August 2007, with little prior debate, Congress hastily enacted the Protect America Act, which essentially legalized a form of the warrantless surveillance. . . .

"[P]rivacy advocates and critics of the administration's expansive theories of presidential power . . . have pushed the lawsuits against the telecoms in hope of winning a definitive ruling that the program was illegal, thereby keeping it from becoming a precedent for the future.

"'When an over-reaching executive wants to conduct illegal spying in secret, those companies are the only ones in a position to say "no" and ensure that the law is followed,' said Kevin Bankston, a senior staff attorney with the Electronic Freedom Foundation. . . .

"'Therefore,' Bankston added, 'it's critical that when they fail to follow the law, they need to be held accountable -- to ensure that next time the government attempts to engage in illegal spying, those companies will say "come back with a warrant."'"

Siobhan Gorman writes in the Wall Street Journal (subscription required): "If the White House prevails in the final negotiations, it will hand Republicans a potent weapon for their 2008 campaign arsenal by showing that their party, even in its weakened state, can still beat Democrats on national-security issues."

Bush, not surprisingly, is keeping the pressure on. Yesterday, he released a written statement, praising the Senate for "a strong, bipartisan vote."

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