Image: Pelosi and Reid
Stefan Zaklin  /  EPA
Speaker of the House Nancy Pelosi and Senate Majority Leader Harry Reid are shown in this file photo.
By Senate Producer
NBC News
updated 6/25/2008 6:03:36 PM ET 2008-06-25T22:03:36

In the war on terror, Democrats claim President Bush has abused the power of his office, violated civil rights, and trampled on the Constitution.

But when given the chance last week to challenge the administration's use of wiretapping, Democratic leaders instead chose to cut a deal with the White House.

The result? It may now never be known if the Bush administration broke the law or sidestepped the Constitution when it launched its secret surveillance program shortly after Sept. 11, 2001.

"We're closing the door, never to know why this happened, who ordered it, why did they avoid [the courts], what was behind their thinking," said Connecticut Sen. Chris Dodd. "And that is a dangerous step for us.”

On Thursday, the Senate is expected to give final passage to that deal — a bill that better regulates ongoing surveillance activity.

The new law would dramatically update the Foreign Intelligence Surveillance Act of 1978. Among its provisions:

  • More ability for the government to monitor suspected terrorists.
  • More FISA court supervision over procedures.
  • More protection for Americans from wiretaps without a warrant.

But the bill fails to resolve the original controversy surrounding the spying program initiated shortly after 2001's terror attacks.

In the beginning...
As first reported in The New York Times in December of 2005, the government wiretapped phone calls and monitored e-mails of suspected terrorists routed through the United States without court warrants.

Video: Obama taking middle ground? As President Bush described it in May 2006, "if al-Qaida or their associates are making calls into the United States or out of the United States, we want to know what they're saying."

Most Democrats were immediately outraged. They suspected that the administration was violating the privacy rights of thousands of innocent Americans, caught in an electronic dragnet. Was it legal for the White House to ask phone companies to wiretap calls without court approval? Was the program constitutional?

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By January 2007, two years after the story broke in The New York Times, the secret program was brought out of the shadows and placed under the supervision of the special court created under the original FISA law. It was also given a name: the Terrorist Surveillance Program. Still, the FISA court never addressed the program's legality or constitutionality.

While Democrats continued to sound the alarm in vain, one Republican also raised his voice citing the historical and constitutional consequences of inaction. Pennsylvania Sen. Arlen Specter was concerned that the White House's refusal to accept court review was part of a broader pattern of unchecked presidential power.

"This is part of the full erosion on constitutional rights," he said.

So while Congress was tightening the reigns on wiretapping laws moving forward, Specter said it would be a mistake to dismiss actions of the past.

"I believe that, decades from now, historians will look at the time between 9/11 and the present as the greatest expansion of unchecked executive power in the history of the country."

Why they cut a deal
Here was the current dilemma: congressional Democratic leaders were facing August deadline to pass a new FISA bill. An unknown amount of surveillance certifications were set to expire. And some Democrats — most up for reelection — were loathe to look weak on any national security issue. A deal had to be struck.

On top of that, the telephone companies that allegedly wiretapped on the government's behalf just after 9/11 were now facing dozens of lawsuits. The plaintiffs claimed privacy laws had been violated.

Fearing bankruptcy and more lawsuits, the telecomms sought immunity for any past actions. Without it, they said, they'd be reluctant to cooperate with future wiretapping requests.

That could potentially leave gaps in surveillance — or worse: halt it entirely.

The White House and most Republicans had long supported the idea of retroactive immunity. And Sen. Jay Rockefeller, Intelligence Committee Chairman, also agreed with the Bush administration.

Video: Administration siding with terrorists-gate? He said the nation couldn't risk losing the cooperation of phone companies. It's a position that most Democrats on his panel supported.

After putting up a fight for months, House Democrats started moving towards the White House position.

They struck a deal that effectively — though not outright — gives the phone companies immunity. In exchange, Democrats got provisions that strengthened Congressional oversight of all government surveillance. But it includes no mention of past wiretapping activities.

"Our troops in the field depend on timely and reliable intelligence to make the decisions necessary to keep them safe and to do their job," said House Speaker Nancy Pelosi.

"Good intelligence is necessary for us to know the plans of the terrorist and to defeat those plans," she said. "So we can't go without a bill."

Democratic disagreements
The bill passed the House last week with solid bipartisan support. But in the Senate, a small Democratic insurgency will fight for one more day.

Senate Judiciary Chairman Pat Leahy is strongly against the final bill. As the head of the panel that confirms all federal judges and oversees the courts, bypassing court review is a non-starter for him.

"This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program," he said.

Leahy adds that his fight is not with the telecomm companies, but feels that lawsuits are the last recourse for getting a court ruling on the spying program.

He and other Democrats had supported failed legislation that would have instead allowed the government to be sued, rather than the phone companies.

"For me, there must be accountability," Leahy said.

Simply put, the issue splits Democrats, within its leadership and within its rank-and-file.

Senators from conservative states will likely support immunity provisions, and those from more liberal states will probably oppose them.

The matter is so politically complicated and nuanced, the party leaders have opted not to lead. Senate Majority Leader Harry Reid says there's no party position on this bill. So Thursday, members can vote their conscious or with their political instincts.

House Speaker Nancy Pelosi summed it up this way before her chamber passed the bill last week: "So again, a difficult decision for all of us. I respect every opinion that was expressed on this floor today. The knowledge, the sincerity, the passion, and the intellect of those who support and oppose this have been very valuable in making the bill better," she said.

Pelosi concluded by saying, "I'm not asking anyone to vote for this bill. I just wanted you to know why I was."

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