Novak falsely suggested House Dems allowed FISA to lapse

In his February 18 column, syndicated columnist Robert Novak asserted that "[a] closed-door caucus of House Democrats" had "instructed Speaker Nancy Pelosi [D-CA] to call President Bush's bluff on extending the Foreign Intelligence Surveillance Act (FISA) to continue eavesdropping on suspected foreign terrorists." Novak added, "Pelosi obeyed her caucus and left town for a week-long recess without renewing the government's eroding intelligence capability." Novak also reported: "Last Friday morning, debating two backbench Republicans on a nearly deserted House floor, Majority Leader Steny Hoyer [D-MD] said there was no danger in letting the FISA legislation lapse temporarily." In fact, FISA did not lapse or expire. What expired was the Protect America Act (PAA), which amended FISA and, among other things, expanded the government's authority to eavesdrop on Americans' domestic-to-foreign communications without a warrant. Indeed, Pelosi noted in a February 13 statement that "the underlying Foreign Intelligence Surveillance Act, which provides for the surveillance of terrorists and provides that in emergencies surveillance can begin without warrant, remains intact and available to our intelligence agencies."

The Washington Post reported in a February 14 article headlined "If the Law Expires," that if the PAA expired, "[t]he government would retain all the powers it had before last August under the Foreign Intelligence Surveillance Act (FISA), which requires the government to obtain court approval for surveillance conducted on U.S. soil or against U.S. targets." Further, a February 14 New York Times article reported:

The lapsing of the deadline would have little practical effect on intelligence gathering. Intelligence officials would be able to intercept communications from Qaeda members or other identified terrorist groups for a year after the initial eavesdropping authorization for that particular group.

If a new terrorist group is identified after Saturday, intelligence officials would not be able to use the broadened eavesdropping authority. They would be able to seek a warrant under the more restrictive standards in place for three decades through the Foreign Intelligence Surveillance Act.

Additionally, Novak wrote that "the Democratic leadership Wednesday brought up another bill simply extending FISA authority, this time for 21 days." In fact, the House voted that day on a 21-day extension of the PAA, not of FISA.

Regarding the 34 Democrats who voted against extending the PAA again, Novak falsely stated that "most were [Rep. Dennis] Kucinich Democrats who intuitively oppose any anti-terrorist proposal." In fact, 28 of the 34 Democrats who voted against the extension voted in favor of the Improving Foreign Intelligence Surveillance to Defend the Nation Act of 2007 on August 3, 2007. That bill would have, among other things, amended FISA to provide that "a court order is not required for the acquisition of the contents of any communication between persons that are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States."

Additionally, 31 of those 34 Democrats voted in favor of the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective Act (the RESTORE Act) on November 15, 2007. That bill contained the same language regarding interception of foreign-to-foreign communications as the Improving Foreign Intelligence Surveillance to Defend the Nation Act of 2007.

From Novak's February 18 column:

A closed-door caucus of House Democrats last Wednesday took a risky political course. By 4 to 1, they instructed Speaker Nancy Pelosi to call President Bush's bluff on extending the Foreign Intelligence Surveillance Act (FISA) to continue eavesdropping on suspected foreign terrorists. Rather than passing the bill with a minority of the House's Democratic majority, Pelosi obeyed her caucus and left town for a week-long recess without renewing the government's eroding intelligence capability.

Pelosi could have exercised leadership prerogatives and called up the FISA bill to pass with unanimous Republican support. Instead, she refused to bring to the floor a bill approved overwhelmingly by the Senate. House Democratic opposition included left-wing members typified by Rep. Dennis Kucinich [D-OH], but they were only a small faction of those opposed. The true reason for blocking the bill was Senate-passed retroactive immunity to protect from lawsuits private telecommunications firms asked to eavesdrop by the government. The nation's torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.

[...]

Instead, the Democratic leadership Wednesday brought up another bill simply extending FISA authority, this time for 21 days. Republicans refused to go along because it did not provide phone companies with the necessary immunity. It still could have passed with support from Democrats alone, and the leadership surely thought that would happen when it was brought to the floor Wednesday. But it failed, 229 to 191, with 34 Democrats voting no despite pleas for support from their leaders. The opponents included three congressmen who signed the letter to Pelosi advocating immunity from lawsuits, but most were Kucinich Democrats who intuitively oppose any anti-terrorist proposal.

Clearly, opposition to the [Sen. John D.] Rockefeller [D-WV] bill shown in the subsequent House Democratic caucus derived less from Kucinich's phobia about tough anti-terror countermeasures than obeisance to generous trial lawyers. Pelosi had to decide whether to pass the bill with a minority of her party, which can be dangerous for any leader of a House majority. In October 1998, Republican Speaker Newt Gingrich passed the Clinton administration's budget with 30 percent Republican support, less than a month before GOP losses in midterm elections forced his resignation from Congress.

Nothing will be done until the House formally returns Feb. 25, and the adjournment resolution was constructed so that Bush cannot summon Congress back into session. Last Friday morning, debating two backbench Republicans on a nearly deserted House floor, Majority Leader Steny Hoyer said there was no danger in letting the FISA legislation lapse temporarily. Democrats hope that will be the reaction of voters, as Republicans attack what happened last week.