The New York Times paints a bleak picture and predicts another Democratic cave-in on the upcoming debate over the FISA bill.

Two months after vowing to roll back broad new wiretapping powers won by the Bush administration, Congressional Democrats appear ready to make concessions that could extend some of the key powers granted to the National Security Agency.

Bush administration officials say they are confident they will win approval of the broadened wiretapping authority that they secured temporarily in August as Congress rushed toward recess, and some Democratic officials admit that they may not come up with the votes to rein in the administration.

But things are not as bleak as the Times would have you believe. There are two proposed bills: one in the House and one in the Senate. The House bill contains language that would force the White House to disclose all aspects of their warrantless wiretapping activities to date (which, given their public comments, could lead to impeachment and conviction). It mandates that a database be kept documenting all subjects of warrantless surveillance. And it does not provide any amnesty for telecommunications corporations that illegally cooperated with the program. At the same time, the bill fixes the problem with the court’s ruling that warrants must be obtained for foreign-to-foreign calls that are merely routed through the United States. Backing up this tough bill are 72 members of the Progressive Caucus that signed a statement of principles that are not to be violated in any bill that they support.

Matters are much different in the Senate. There the bill is in the hands of Intelligence Chairman Jay Rockefeller (D-WV).

In the Senate, the Democratic chairman of the Intelligence Committee, John D. Rockefeller IV of West Virginia, is working with his Republican counterpart, Christopher S. Bond of Missouri, who was one of the main proponents of the August plan, to come up with a compromise wiretapping proposal. Wendy Morigi, a spokeswoman for Mr. Rockefeller, said that retroactive immunity for the telecommunications companies is “under discussion,” but that no final proposal had been developed.

Any bill that is worked out in consultation with Kit Bond is going to violate several of the Progressive Caucus’ inviolate principles. That raises the risk that all the good parts of the House bill will be stripped out in conference.

And, of course, the House bill is totally unacceptable to the Bush administration. But that is the good news. The House has introduced a bill that is unacceptable. But the FISA bill has to pass or the authority to do (legitimate) warrantless surveillance will lapse. The telcoms will have no immunity unless it is expressly granted to them. So, the pressure will be on for something to pass. Filibustering isn’t an attractive option…nor is a veto.

The administration strategy will remain the same. They will try to get Sen. Rockefeller to craft an acceptable bill, then they will fight for its provisions in the conference committee that has to reconcile the House and Senate bills. When this bill goes back to the House (now without the provisions the Progressive Caucus deems essential), the administration hopes to peel off enough Blue Dogs to make up the difference. But seventy-two is a big number to overcome.

Here’s a list of freshman Democrats that unwisely voted for the August FISA bill. Call them and encourage them to hold firm on the language that is passed in the House bill. Tell them not to cross the aisle to vote for a Senate version.

Harry Mitchell AZ-05, (202) 225-2190
Zach Space OH-18, (202) 225-6265

Jason Altmire PA-04, (202) 225-2565
Chris Carney PA-10, 202) 225-3731
Nick Lampson TX-22, (202) 225-5951
Joe Donnelly IN-02, (202) 225-3915
Brad Ellsworth IN-08, (202) 225-4636
Baron Hill IN-09, (202) 225-5315
Tim Walz MN-01, 202) 225-2472
Heath Shuler NC-11, (202) 225-6401
Ciro Rodriguez TX-23, (202) 225-4511.

Tell them you want your rights back. And while you’re at it, call Sen. Rockefeller and tell him that you want a bill that doesn’t violate the statement of principles.

Update [2007-10-9 13:49:38 by BooMan]: I’ve been informed of another procedural risk. After the Democrats introduce and debate their version of the FISA bill, the Republicans will have the opportunity to offer a Motion to Recommit with Instructions. Essentially, they will try to pass amendments that will protect the telecommunications companies and otherwise strip the bill of juice. If they succeed, the Judiciary Committee will be compelled to include that language in the bill and send it back for a vote. So, the first hurdle is to prevent Democrats from caving in on this Motion to Recommit vote. Once we pass that test, we’ll still have to prevail in conference. In the conference, the House will probably be represented by the senior members of the Judiciary Committee (Conyers, Nadler, and Bobby Scott). If we get that far, we’re in good shape.