David Sarasohn: Surveillance law victim of summer

It is becoming a summer tradition in Washington.

President Bush and the Democratic Congress were in an argument over some changes to the Foreign Intelligence Surveillance Act. The Democrats proposed making adjustments to reflect changes in information technology; the president had in mind something broader, something to cut way down on those annoying trips to the Foreign Intelligence Surveillance Court to get court orders for listening in on phone calls.

Then, the August congressional recess suddenly loomed, and the administration moved to its favorite argument: Give us what we want, now, or we’ll all die.

Homeland Security Secretary Michael Chertoff mused that he had a “gut feeling” that something bad would happen in August. Senate Minority Whip Trent Lott, R-Miss., warned that without the administration’s bill, “The disaster could be on our doorstep,” and, “I think it would be good to leave town in August.”

Congressional Democrats – even though they were all planning to leave Washington in August anyway – folded like lawn chairs. Enough of them joined the Republicans to pass a bill that basically added to the attorney general’s powers the title of telephone operator-in-chief.

“You could set your calendar by it,” says Sen. Ron Wyden, D-Ore., a member of the Senate intelligence committee. “Right before recess,” the administration takes its non-negotiable positions.

“I think this is a dangerous time for the country,” says Wyden, “but it doesn’t get more dangerous a few days before a congressional recess.”

Democrats did manage to give the new bill a six-month cutoff. The question is whether they’ll stand tougher the second time around.

The bill’s basic goal was to cover a glitch in the law created by new technology. The National Security Agency was always considered to have the power to intercept foreign-to-foreign calls, but now such calls may be routed through the United States, raising different legal issues. The Democrats’ proposal would have allowed surveillance of calls if the agencies “reasonably believed” both parties to be outside the country, while maintaining some surveillance act oversight and curbing domestic surveillance – because U.S.-U.S. calls can also be routed outside the country.

Not to mention calls between the United States and the rest of the world.

Basically, the administration demanded – and got – all the powers with none of the safeguards. Decisions will now be made by the attorney general and the director of national intelligence, with not much of a role for the FISA court at all.

And any little mistakes, such as listening to calls involving U.S. citizens in America without court order, we won’t really worry about.

“I am troubled,” Morton Halperin of the U.S. Advocacy Open Society Institute told the House Judiciary Committee last week, “because Congress granted to the executive branch broad authority, in violation of the Fourth Amendment, to intercept the phone calls and e-mails of persons in the United States.”

As Wyden puts it, “Most Americans have the legitimate expectation that the government will not listen to their phone calls without a court order. Now you’ve got a piece of legislation that repeals that for all overseas calls.”

The question is whether congressional Democrats, now busily devising overhaul legislation in the House and Senate judiciary and intelligence committees, will stand any firmer this time.

“I’m hopeful,” says Wyden. “My guess is that a lot of folks went home this summer and probably had a lot of trouble explaining this one.”

As anyone who has gone to recent congressional town halls can attest, Democratic members of Congress had a lot of trouble explaining a lot of things.

It looks increasingly uncertain that the Democrats narrowly controlling both houses will have much of an impact on the war in Iraq, where the president insists things are going too splendidly to change anything. At least they could try to make a stand on the home front, on constitutional protections.

And you’ll be able to tell when the issue comes to the critical point.

It will likely be just before a congressional recess.

And Secretary Chertoff will have a feeling in his gut.