Terror Watch: Showdown Over Secret Surveillance

The White House is trying to force a political confrontation this week over the terrorist surveillance issue—threatening to label congressional Democrats as soft on national security unless they quickly approve a new bill that would give the U.S. intelligence community vastly enhanced spying powers. The bill includes a hotly contested provision that would grant blanket immunity to telecommunications companies facing lawsuits for cooperating with intel agencies after the 9/11 attacks. The aggressive new White House position reflects a political assessment that, with the fall elections approaching, the administration has the upper hand on an issue that has proved sharply contentious for nearly a year, according to Republican aides and lawyers familiar with administration thinking.

In recent days the White House has quietly sent word that President Bush will veto any surveillance bill that does not include immunity for telecommunications companies. "The administration is going to play very tough here," said David Rivkin, a Washington lawyer who has participated in strategy sessions with White House aides regarding the issue. Asked Wednesday about a veto threat, White House spokesman Tony Fratto said, "We haven't used the V-word. But we've been pretty clear in all our messages. There is no reason why [Congress] can't get this done."

The telecommunications immunity provision has proved especially controversial because it would effectively shut down more than 40 private lawsuits alleging that firms including AT&T and Verizon violated the privacy of American customers by secretly turning information about their phone calls and e-mails over to U.S. intelligence agencies without the authorization of the special Foreign Intelligence Surveillance Court. If the lawsuits were allowed to go forward, they could become vehicles for a full public examination of still secret orders and legal rulings that the president and Justice Department used to justify warrantless eavesdropping on American citizens after September 11.

Vice President Dick Cheney underscored the confrontational new White House posture in a speech at the conservative Heritage Foundation Wednesday, warning that the "day of reckoning" is fast approaching. He said Congress has "only nine days" to act before Feb. 1—the date on which a temporary surveillance law (the Protect America Act) approved last summer is slated to expire. "The danger to our country remains very real, and … the terrorists are still determined to hurt us," Cheney said, citing a U.S. intelligence assessment last year that the country is facing a "heightened threat environment." Cheney claimed that if Congress fails to pass a new version of the law, America's ability to monitor Al Qaeda terrorists will "begin to degrade." And that, he added, "we simply cannot tolerate."

The proposed surveillance measure has sharply divided congressional Democrats, with some liberals saying it would allow intelligence agencies to spy on the phone calls and e-mails of U.S. citizens without adequate judicial oversight. Both of the leading Democratic presidential candidates, Senators Hillary Rodham Clinton and Barack Obama, opposed a version of the surveillance bill backed by the administration as well as a majority of Democrats on the Senate Intelligence Committee. On Tuesday, Senate Majority Leader Harry Reid attempted to pass a 30-day extension of the Protect America Act. But Senate Republicans, with White House encouragement, blocked the effort. Then Reid—while still urging the White House to back an extension—agreed to begin debate on the full Senate intelligence committee bill Wednesday night. "We are going to finish that legislation this week," Reid said. "It is critically important." Sen. Christopher Dodd, one of the strongest opponents of the White House version of the bill, has vowed to "use every tool at my disposal as a senator" to continue to block any bill with an immunity provision for telecom companies.

Even if the Senate does eventually pass a measure favorable to the White House, there is no guarantee the House of Representatives will go along with it. House Democrats have been working on their own surveillance bill. It omits immunity and other legal relief for telecom companies and also contains what some Democrats regard as necessary new safeguards to protect citizens against intelligence agency abuses. However, both the administration and a majority on the Senate Intelligence Committee say the House bill is totally unacceptable to them. Some administration supporters on Capitol Hill say that they expect House Democrats and other opponents of the administration's position to wilt under pressure as the White House steps up its effort to portray Democrats as obstructionists in the war on terror. It's a tactic the White House has used effectively in the past—most recently last summer, when President Bush pressured Democrats into passing the temporary surveillance bill that is about to expire. Apparently he believes it will work at least one more time.

Terror Watch appears weekly on Newsweek.com