The 48 to 45 vote put Democrats in the odd position of opposing a vote on a bill supported by Democratic leaders and authored by fellow Democrat-Sen. Jay Rockefeller, D-West Va., chairman of the intelligence panel.

Rockefeller and most Democrats said they opposed the Republican motion because it would have prevented a full airing of Democratic amendments to the controversial bill.

“The FISA legislation before the Senate has been taken hostage,” said Rockefeller in a floor speech urging Democrats to vote against ending debate and bringing his bill up for a vote. “In a transparent attempt to score political points off of national security issues, the White House has decided once again that scaring the American people with unfounded and manipulative claims is in order.”

A temporary measure providing expanded wiretapping authority approved last August is scheduled to expire on Friday. The Senate voted 48 to 45 to reject an effort to extend that measure.

The bill, co-authored by Sen. Kit Bond, R-Mo., cleared the Senate panel last fall by a wide, 13-2 vote. It would update the 1978 Foreign Intelligence Surveillance Act, which forces law enforcement agencies to obtain a court warrant before eavesdropping on suspected terrorists and spies.

The next step is uncertain. Civil liberties groups, which lobbied hard to prevent the bill come to the floor, said one option is to do nothing and force the administration to revert back to the original 1978 law.

The proposed law is controversial because it essentially makes permanent President Bush’s program that secretly authorized the National Security Agency to eavesdrop on telephone calls and e-mails of suspected terrorists without a court warrant as required under the law.

The bill also contains a provision, sought by the White House, that would give telephone companies legal protection from dozens of lawsuits now pending against the telcom industry for participating in the president’s terrorist surveillance program without a court warrant.

Republicans, just hours before President Bush was to address the nation in his annual State of the Union speech, portrayed Democrats as being weak on terrorists for failing to end debate and vote on the Rockefeller-Bond measure.

Prior to congressional action in August, the nation’s intelligence agencies were unable to collect vital foreign intelligence without the prior approval of a court, said Sen. Saxby Chambliss, R-Ga., a member of the Senate Intelligence Committee, speaking on the floor.

“This will be the case again if we do not make permanent these changes,” Chambliss said. “Our intelligence community told us that without updating FISA, they were not just handicapped, but that they were hamstrung.”

Sen. John Cornyn, R-Texas, urged Democrats to vote with Republicans to end debate and vote on the intelligence committee bill. It is time to support a bipartisan bill, Cornyn said, and give the intelligence community the tools they need to thwart future terrorist attacks.

It now seems highly likely (though not certain) that the Democratic filibuster to prevent a vote on the Senate Intelligence Committee bill will succeed. This afternoon on the Senate floor, GOP Sen. Arlen Specter even indicated that he would support the filibuster, making it extremely unlikely that Senate Republicans will be able to get 60 votes to cut off further debate and proceed to a vote.

That means that the Senate will then proceed to debate and vote on all of the pending proposed amendments to the Senate Intelligence Committee bill (including one from Dodd and Feingold to strip telecom immunity out of it, one from Feinstein to transfer the telecom cases to the FISA court and let that court decide whether there should be immunity, one from Feinstein re-iterating that FISA is the "exclusive means" for legal eavesdropping, and one from Specter/Whitehouse to allow the telecom lawsuits to continue but to substitute the Government for the telecoms as defendants).

But the most interesting question at the moment is whether the Senate, once it blocks a final vote on the bill, will be able to pass a 30-day extension of the Protect America Act. The House is scheduled tomorrow to vote on the extension, but either way, the President has vowed to veto it.

If there is no 30-day extension, then it is difficult to see how this is going to play out. The deadline for expiration of the PAA is this Friday. If the House and Senate do not pass identical bills by that date -- and, provided the Senate sustains its filibuster this afternoon, it seems impossible that they will -- then that means (in light of Bush's refusal to accept a 30-day extension) that the PAA is almost certain to expire on Friday without any new bill being in place. Given Bush's endless insistence that the PAA is necessary to save us all from The Terrorists, it is -- as I explained this morning -- one of his most brazen acts ever that he will simply allow the PAA to expire. How can expiration of this "Critical Intelligence Tool" possibly be preferable to a 30-day extension?

The only conceivable way that this could all work out for the White House is for there to be a repeat of what occurred back in August, when the pro-warrantless-eavesdropping Protect America Act was foisted on our country: namely, the Senate hastily passes at the last minute a terrible bill demanded by the White House right before the deadline, and then forces the House to choose between (a) passing the terrible Senate bill or (b) allowing the deadline to pass with no bill at all. But given the rather strong opposition in the House to telecom immunity and vesting vast new warrantless eavesdropping powers in the President, it's hard to imagine the House capitulating to the Senate again in that way.

This afternoon, I asked a well-placed and knowledgeable source in the House about what would likely happen if the Senate passed a bad bill tomorrow or Wednesday and left the House with very little time either to do the same or let the PAA expire. This is the reply:

As to how it plays out, I'm sure that you saw the editorial in the New York Times yesterday that suggested we pass a 30-day extension and leave town, much like Senate did to us in August with S. 1927 (the PAA).

We're not in session this week after tomorrow afternoon. House vote on HR 5104 [to extend the PAA by 30 days] is contemplated tomorrow.

If the bill fails over here [because] of Republican opposition, or in the Senate, or in the President's veto pen, then any "going dark" would be on their hands.

That's the right way to think about it and one hopes the House will do that. Moreover, since the House isn't in session until after tomorrow, it seems impossible that there will be a bill ready for the President's signature before Friday -- which means Bush will have to choose between retreating from his veto vow on the 30-day extension or leaving us all vulnerable to being Slaughtered by the Terrorists and unable to listen in when Osama Calls.

Labels: FISA