House and Senate aides from both parties were finalizing language late Tuesday to rewrite the nation's electronic surveillance laws, even though the Senate's top two Democrats declared they would not support the compromise.
The latest proposal to overhaul the Foreign Intelligence Surveillance Act must be vetted with lawmakers in both chambers, and it was not immediately clear how it would be received.
It also was unclear which chamber would take up the proposal first. Several senators said they want the House to act first because they believe it would face more obstacles there.
Senate Majority Whip Durbin said he expected divisions over the emerging proposal among Democrats in the Senate and within the House Democratic leadership.
Durbin said he would not support the proposal because of how it deals with lawsuits that have been filed against telecommunications companies for helping the Bush administration conduct electronic surveillance against U.S. citizens without warrants.
The proposal would require a federal district court to dismiss lawsuits against the companies if they received a directive from the administration saying the warrantless surveillance was legal and authorized by President Bush, according to congressional aides.
The lawsuits would be thrown out if a company can show it did not help the administration with warrantless surveillance, an aide added. Under the proposal, the district court would not have to disclose why a lawsuit was dismissed.
Durbin said the proposal has "the lowest possible threshold" for dealing with the lawsuits. He has been backed by groups like the American Civil Liberties Union.
"We know that [the administration] sent directives so the outcome is ordained," said Caroline Fredrickson, ACLU's top Washington lobbyist.
"The objective of this provision is to dispense with any legal accountability," she said. "It's pretty clear that the outcome from these provisions will be dismissal in fairly short order."
Supporters of the provision say the firms should not be held liable for acting in response to a directive they were told was legal and needed to protect the country from terrorists.
Senate Majority Leader Reid said he also opposes the deal.
"I will not support that, but a lot of people will," he said. "I think it's good that there's been progress made even though I disagree with the progress that has been made."
The latest proposal is the product of negotiations between House Majority Leader Hoyer, House Minority Whip Blunt, Senate Intelligence Chairman John (Jay) Rockefeller and Intelligence ranking member Christopher (Kit) Bond, along with Bush administration officials, including the director of national intelligence, aides and lawmakers said.
Rockefeller said the proposal moves closer to what House Democrats wanted and what Senate Judiciary Committee Democrats wanted.
He would not discuss details, but said "enormous changes" were made to provisions in a FISA reform bill approved by the Senate in the spring.
Many House Democrats rejected an earlier compromise that would have authorized the secret FISA court to determine if companies should be immune from lawsuits. They favored having the district court review the lawsuits and deciding if immunity is warranted.
"I don't want to jinx anything," he said. "It's greatly changed; I really emphasize that."
Blunt said progress was made last week on the proposal but cautioned that a final deal had not yet been sealed.
"It is possible we can get it done before the Fourth of July," Blunt said. "But then I thought we could get it done before Memorial Day."
House liberals still must be briefed on the bill and could pose the biggest obstacle to its passage.
Other provisions in the compromise require the administration to submit its surveillance procedures to the FISA court for approval before surveillance could begin, except under exigent circumstances, an aide said.
Critics like the ACLU say the administration could simply avoid having to get approval from the court by treating every situation as requiring immediate action.
The latest compromise also includes a five-year sunset provision, which is intended to force Congress to revisit FISA.
And the proposal includes language making FISA the exclusive means under which the administration can conduct electronic surveillance. An aide said the exclusivity language essentially mirrors that which was in the FISA bill passed by the House earlier this year.
This article appears in the June 21, 2008 edition of NJ Daily.