Wiretapping Compromise Was Months in the Making
WASHINGTON - Last June, in a phone conversation with Vice President Dick Cheney, John D. Rockefeller IV, chairman of the Senate Intelligence Committee, set down his conditions for revising the law governing the National Security Agency's eavesdropping. Only when the committee got access to secret administration documents authorizing surveillance without court warrants, Mr. Rockefeller told the vice president, would it consider such legislation.
That vow paid off this week when, after some last-minute brinkmanship, the committee got to see the documents and then on Thursday night passed a bipartisan bill that offers a compromise between Congress and the Bush administration on the contentious eavesdropping issue.
Under the bill, the administration would get retroactive legal immunity for the telecommunications companies that have granted the N.S.A. access to private communications and phone call data; Democrats would get increased oversight of the agency's eavesdropping by the Foreign Intelligence Surveillance Court, Congress and inspectors general.
The bill is a long way from becoming law. The House Intelligence Committee, and the Judiciary Committees of both the Senate and the House, have not been allowed to see the secret documents: President Bush's orders authorizing the program, and Justice Department opinions laying out its legal basis. And White House officials are being coy about whether those committees will get access.
Dana Perino, the White House press secretary, said Friday that the Senate Intelligence Committee had gained access to the documents only after its leaders had indicated that they would grant immunity to the phone and Internet companies.
"To the extent of anyone else being able to see the documents," Ms. Perino said, "I think that we'll wait and see who else is willing to include that provision in the bill."
The corresponding bill in the House does not currently grant immunity.
The White House is also objecting to one amendment in the Senate legislation. That provision, by Senator Ron Wyden, Democrat of Oregon, would require individual court warrants for eavesdropping on Americans overseas; at present, only the attorney general's authorization is required.
Further, Senator Christopher J. Dodd of Connecticut has said he will put a hold on the bill in order to block the immunity provision, a pledge that Republicans swiftly denounced as a fund-raising gimmick for his long-shot Democratic presidential campaign.
Despite all those obstacles, the Senate bill is the closest approach to date to a compromise between those underscoring a need to listen in on terrorists and those who would protect the privacy of Americans' phone calls and e-mail messages.
Mr. Rockefeller and Mr. Cheney had tangled previously over the N.S.A. domestic surveillance program. In July 2003, after a briefing for leaders of the Intelligence Committees from which staff members were barred, Mr. Rockefeller hand-wrote a protest note to the vice president, saying that as "neither a technician nor an attorney," he was not able to satisfy his concerns about the legality of eavesdropping without warrants.
Mr. Rockefeller, of West Virginia, and other Democrats were also dissatisfied with the changes to eavesdropping law rushed through Congress before the August recess. Ensuring that those changes would be revisited, Democratic leaders placed a six-month limit on the legislation, which was passed in response to a court ruling that had restricted the N.S.A.'s intelligence gathering. The bill adopted by the Senate committee on Thursday night would succeed that new law.
The White House negotiated the bill primarily through Christopher S. Bond of Missouri, the leading Republican on the Senate Intelligence Committee and a staunch ally in efforts to broaden the N.S.A.'s wiretapping authority. Officials said that while Mr. Rockefeller had had some direct dealings with the director of national intelligence, Mike McConnell, and other administration officials, it was Mr. Bond who had acted as the main liaison to the White House on the issue.
This week, with the administration promising access to documents, but not before next Monday, Mr. Rockefeller threatened to cancel a committee meeting, scheduled for this Thursday, where the legislation was to be "marked up" - that is, debated and voted on. "We said, 'Good, there won't be any markup,'" he recounted.
The White House yielded, inviting senators and staff members with clearances to inspect the documents on Wednesday.
During a long committee debate behind closed doors Thursday, Senator Bill Nelson, Democrat of Florida, proposed an amendment to strip the immunity provision from the bill. But it was defeated on a 12-to-3 vote, with only Mr. Wyden and one other Democrat, Senator Russell D. Feingold of Wisconsin, joining Mr. Nelson.
In the end, only Mr. Feingold and Mr. Wyden voted against the bill, a result announced with a surprising show of comity for a committee that has often been mired in partisan sniping. Mr. Rockefeller and Mr. Bond interrupted each other to praise the committee's bipartisan effort.
Meanwhile, the administration has largely shunned leaders in the House, Democrats there say. And leaders of the House Intelligence Committee and both the Senate and House Judiciary Committees have said they still have no indication that they will be given access to the administration documents, which they have sought for months.
As administration officials press those committees to accept the Senate bill, they will face the staunch opposition of civil liberties groups, which generally oppose granting immunity to the telecommunications carriers. On Friday, Caroline Fredrickson, director of the Washington legislative office of the American Civil Liberties Union, condemned the Senate compromise.
"Congress," Ms. Fredrickson said, "bowed to the fearmongering of the administration, yet again."
© 2007 The New York Times