This rather long post is aimed at unraveling the recent, and confusing, national security-related activity in the House and Senate.

The mystery, to the extent that there is one, revolves around the refusal of Republican House members to support the extension of a law that they claim is necessary to prevent terrorist attacks. That refusal was prompted, or at least supported, by President Bush’s threat to veto the law if it were extended. Combined, those actions caused the expiration of the law. Why would the Republicans prefer that outcome? Let’s take a look…

First, I don't know how many of you are following this issue closely, but here, in a (rather large) nutshell, is what has happened so far.

The Foreign Intelligence Surveillance Act (FISA) provides the means for the administration to spy on suspected terrorists and spies. FISA has been modified a number of times since September 11, 2001. Each time, the Bush administration has been given everything it asked for, and the administration has hailed the changes as being exactly what was needed to fight terrorism in the new century. Those post-9/11 modifications expired last weekend, when Republicans failed to support an extension, and we are now back to the law as it was prior to 9/11.

How did this come about? The key is that the Republicans did not want to just extend the law; they wanted to modify FISA again. This time, however, the contentious changes they proposed had little to do with improving the mechanisms by which intelligence is gathered, but a great deal to do with providing retroactive immunity to the telecommunications companies that (probably) violated the law by helping the administration perform warrantless surveillance on American citizens. Mind you, we are not talking about immunity for ongoing surveillance, which the telecoms would have under any version of the FISA revisions, but rather retroactive immunity for activities that were (probably) illegal at the time they were performed.

The House refused to pass a retroactive immunity bill. The Senate initially refused to do so as well. Members of Congress had been requesting information about questionable activities for many months, but the administration had been unwilling to provide it, even to the committees that have the proper security clearances. Members were hesitant to provide immunity without a fair idea of what the activities included.

In spite of that concern, both the House and Senate cooperated to extend the existing FISA provisions to allow for more consultation on the issue. Bush had threatened to veto that extension, but finally signed it into law.

Negotiations continued, and eventually, the Senate enacted a form of the FISA extension that met the Bush administration's desire for immunity. The House refused, sticking with a bill that provided no immunity. Normally, at this juncture, there would be a conference committee. The House and the Senate delegates would meet, go over their different versions of the bills, and try to come up with a compromise bill that could be enacted. In order to allow that, the Democrats in the House tried to pass another temporary extension of the existing FISA provisions. Most Democrats voted for it, but a few did not. Without a handful of Republican votes, it could not pass.

But here is where this almost typical legislative story turns into a mystery. President Bush again announced that he would veto any extension of FISA and that the House had to pass exactly the bill he wanted, or there would be no bill at all. So what? He did that before, didn’t he? Ah, but this time the Republicans in the House took him at his word and refused to vote for the extension, the modifications to FISA expired, and we were (and are) back to pre-9/11 law.

Why did the Republicans do that? Bush claims that the provisions in the just-expired law are vital to national security. And he claims that the nation is at risk because the law has expired. But he could easily have had another extension of that law, with all the additional powers he has requested since 9/11. Why did he force the law to expire?

The public justification is that immunity for the telecoms is essential or they will not cooperate with the gathering of intelligence going forward. This seems unlikely. They have not had such immunity up to now and they have been cooperating every day, in every way. Even those who make this argument put it in the future tense, admitting that there has been, to date, no lack of cooperation. But even if we take Bush at his word, what could possibly justify putting the nation at immediate risk (as he claims) while trying to force immunity through Congress? Why would you give up the bird in hand while you are still shooting for the bird in the, well, bush?

I believe the motivation for this odd choice is rooted somewhere other than the desire for increased national security. If security were the issue, Bush would have at least accepted an extension of the current FISA while the negotiations went on between the House and the Senate. On the face of it, it seems that the chance on forcing retroactive immunity for the telecommunications companies is more important than the certainty of having the additional surveillance powers already added to FISA. Two plausible explanations are apparent, and both may be true.

The first explanation, and the simplest, is that the previously added powers are not nearly as critical as Bush makes them out to be. In the short term, and probably in the long term, the powers originally granted in FISA are likely sufficient to the need. It seems this must be true, as it is difficult to believe that Bush would knowingly put the nation at risk. It seems much more likely that he is misleading us about the danger in order to get additional grants of power. That, at least, has historical precedent on its side.

The second explanation, and I think the more important one, is that what sits on the other side of this scale is not the desire for immunity, but rather the fear of judicial review. Many administration actions over the last few years have been designed to prevent judicial review of administration activities. The administration has played the national security card to get cases dismissed without any hearing on the merits. The new Attorney General recently claimed that an action is legal, or at least not prosecutable, if the A.G.’s Office of Legal Counsel once said it was legal. The A.G. will not pursue contempt citations, or any other actions, that would bring presidentially authorized actions in front of a court. All these maneuvers keep the courts from deciding the legality of executive actions. But that has traditionally been the province of judges and is a major component of our system of checks and balances. Thus these executive machinations, designed to avoid judicial review, result in a marked shift of a specific power -- the power to determine whether laws were broken -- from the judicial to the executive branch.

So how does fear of, or at least antipathy toward, judicial review fit into the FISA saga? It provides the key motivation for Bush’s all or nothing ploy: “Give telecoms immunity or give Americans death.” Bush rightly feared that an eventual compromise might not include the immunity he seeks. The ploy was, and is, a last-ditch effort to prevent eventual judicial review of possibly illegal activities. If the ploy works, Bush wins and there will never be judicial examination of these actions. Executive power will remain unreviewed -- and thus unfettered -- and the world will once again be safe for the unitary executive.