Lawmakers and aides described significant developments Wednesday in negotiations on revisions to the Foreign Intelligence Surveillance Act, but some congressional sources cautioned that a final deal could remain elusive.
Behind-the-scenes negotiations appeared to take on urgency after Senate Intelligence Chairman John (Jay) Rockefeller floated a proposal Tuesday that his spokeswoman described as "the best area of compromise" after weeks of talks with Democrats and Republicans from both chambers, the White House, Justice Department and Director of National Intelligence Mike McConnell.
"He took the input from all of the stakeholders and put forward a compromise that reflected all of their input," the spokeswoman said of Rockefeller. She would not discuss any details.
Other aides said Rockefeller met with McConnell Wednesday to discuss the proposal.
Across Capitol Hill, House Intelligence Chairman Silvestre Reyes said he believed a final deal could be reached by the Memorial Day recess.
"I think we've got 90 percent of it done," he said. "I think there's a compromise position."
Reyes said the telecom firms have been given proposed legislative language to review. "The key is the telecoms," he said.
He said the language would require a court to determine whether telecommunications companies should be granted immunity from lawsuits arising from their cooperation with the Bush administration's warrantless electronic surveillance activities since the Sept. 11, 2001, terrorist attacks.
It is has not been determined whether the cases would be heard in federal district court or before the secret FISA court, Reyes said.
Some Democrats, such as Rep. Jane Harman, D-Calif., want to ensure that the final deal empowers the court to conduct a thorough review of the cases. "There is certainly some forward motion, which is better than no motion or backward motion," she said.
"I think if we can find a way forward on a bipartisan basis to modernize FISA and to find a process for the court to review telecom conduct then we can get to a deal," Harman added. "In order for this to fly we have to have either a veto proof margin in both chambers or presidential buy in."
Other sources cautioned that problems remain.
"There is a feeling that there could be a problem with some of the members in our Caucus," said one House Democratic aide, referring to Rockefeller's proposal.
Rep. Rush Holt, D-N.J., a member of the House Intelligence Committee, added, "I'm told that there's a compromise taking shape [but] from what I've heard, there may be movement in the wrong direction."
In addition, several Senate Republicans, such as Senate Intelligence ranking member Christopher (Kit) Bond do not support the Rockefeller proposal, a Senate GOP aide said. "We don't think there is 90 percent, or even 50 percent agreement; there is zero agreement from us," the aide said in an e-mail response.
Meanwhile, Senate Republicans are still waiting for House Majority Leader Hoyer to present his own offer of a compromise.
Lawmakers have been stymied for weeks trying to reach a deal on FISA legislation that can overcome the deep split over the immunity issue and demands, mainly from Democrats, that the rights of U.S. citizens be protected. About 40 lawsuits have been filed against the companies and President Bush has insisted he will veto any bill that fails to shield the companies from civil liability.
And pressure on Hoyer from the Blue Dog Coalition appears to be growing.
Sources said the Blue Dogs are threatening to use obstructionist tactics to force a Senate-passed FISA bill to the House floor for a vote if Hoyer does not strike a satisfactory agreement by the Memorial Day recess.
This would align the Blue Dogs with House Republicans, who prefer the Senate bill because it includes legal immunity for the telecom firms. A Republican-backed discharge petition was filed last month in the House, and GOP leaders have been working hard to persuade Blue Dogs to help bring the bill to a vote.
This article appears in the May 10, 2008, edition of National Journal Daily.