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Reid's retreat

In starting, then stalling, debate on a privacy bill, he could botch a deal that helps protect Americans.

December 22, 2007

Senate Majority Leader Harry Reid (D-Nev.) marched his troops up an important hill on Monday and then, as he has done before, he marched them back down again. The hill in this case was legislation that would subject eavesdropping on Americans by the National Security Agency to meaningful judicial oversight. Reid retreated in the face of a talkathon by Sen. Christopher J. Dodd (D-Conn.), who opposes a provision in one of two versions of the legislation that would grant retroactive legal immunity to telecommunications firms that cooperated with the NSA.

The majority leader's reversal, reminiscent of last summer's hasty removal from the calendar of an immigration bill, won't do anything to enhance his reputation as a parliamentary tactician. That's a mess already. The more important consequence of this delay is that it threatens to undo a bipartisan compromise agreed to by the Bush administration that, while not ideal, is preferable to a stopgap "FISA fix" tendentiously known as the Protect America Act, which will expire in February. That compromise, approved 13 to 2 by the Senate Intelligence Committee, includes the immunity for telecoms demanded by the Bush administration.

In postponing the debate, Reid argued that fixing FISA, the Foreign Intelligence Surveillance Act, is so important that the Senate couldn't deal with it thoroughly before recessing for Christmas. Then why did he bring up the bill Monday and obtain the support of 76 senators for 30 hours of debate followed by a final vote? Apparently he didn't anticipate that opponents of immunity would use all that time, keeping the Senate from other business, including a spending bill.

Now the Senate will wait until January to consider two versions of FISA reform -- the Intelligence Committee bill and a Judiciary Committee version with no immunity provision -- along with amendments designed to finesse the immunity issue. Only after a Senate bill has been passed can a conference committee reconcile it with a bill passed last month by the House. (The House bill has no immunity provision.)

That time lag could contribute to a time crunch like the one that produced the deeply flawed Protect America Act, which Congress enacted last summer in a pre-recess stampede. A stall in enacting a new FISA fix might even tempt the administration to dust off its original proposal to make the Protect America Act permanent. That would be a disaster for Americans' privacy.

Ideally, immunity would be considered apart from new privacy protections for Americans. The choice Reid spared his colleagues this week was thus a difficult one: either provide the telecoms with legal protection or dare President Bush to make good on his veto threat. But they'll face the same choice in January. Reid was right to press his colleagues to make the choice sooner rather than later -- and wrong to retreat when he encountered resistance.

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