FISA has hit political rock bottom

The Protect America Act, a six-month modification to the Foreign Intelligence Surveillance Act that directly affects the National Security Agency’s terrorist surveillance program, expires on Feb. 1. It’s looking more and more like the Congress will punt on this one, passing another temporary extension–perhaps as short as one month–while lawmakers try and sort out a compromise on the law’s most intractable issue: immunity for telecom companies that assisted the government in the NSA program after the 9/11 attacks.

The fact that there has yet been no bargain on this point is an excellent measure of just how politically poisonous the debate over intelligence gathering has become. When Protect America was enacted last summer, no one thought a permanent law would be stymied by the immunity debate. As I wrote last month, immunity is actually a Trojan Horse for the administration’s critics to pry loose more information about classified intelligence activities.

Very few lawmakers honestly believe that the telecom companies acted in bad faith when they helped the government monitor phone calls and e-mails, and very few want to expose those companies to potentially devastating lawsuits. There is also very little practical difference in the kind of permanent eavesdropping laws that Republicans and Democrats want to enact. (See Ben Wittes’ excellent analysis on this fromThe New Republic.)

Given their positions, there’s no logical reason, or even a very principled one, why congressional Democrats and Republicans and the White House can’t hammer out a deal here. The FISA debate has now become utterly political. And despite how one feels about the merits of this law or its proposed changes, history shows us that the mix of politics and intelligence is a dangerous one.