Potential Deal Could Assure Retroactive Immunity

This is from last night’s Congress Daily PM dispatch by Chris Strohm and Christian Bourge:

To break an impasse over legislation overhauling the Foreign Intelligence Surveillance Act, House Democratic leaders are considering the option of taking up a Senate-passed FISA bill in stages, congressional sources said today. Under the plan, the House would vote separately on the first title of the bill, which authorizes surveillance activities, and then on the bill’s second title, which grants retroactive legal immunity to telecommunications companies that aided the Bush administration’s warrantless electronic surveillance activities. The two would be recombined, assuming passage of both titles. In this way, Democratic leaders believe they can give an out to lawmakers opposed to the retroactive immunity provision. Republican leadership sources said their caucus would back such a plan because not only would it give Democratic leaders the out they need, it would provide a political win for the GOP. It remains to be seen if such a move will placate liberal Democrats who adamantly oppose giving in to the Bush administration on the immunity issue.

House Speaker Pelosi said that Democrats hope to have a solution worked out by March 8. But she also indicated that Democrats want language included in the bill that would clarify that FISA is the exclusive means under which the government can conduct electronic surveillance. The White House and some congressional Republicans have argued that the 2001 authorization of military force to launch the war on terrorism gave Bush the authority to conduct warrantless electronic surveillance. They also say the president has inherent constitutional authority to do what is necessary to protect the country. Senators have battled over whether to include so-called exclusivity language in their FISA bill. In the end, an amendment from Sen. Dianne Feinstein, D-Calif., that states FISA is the exclusive means for conducting electronic surveillance failed to win a needed 60 votes in a roll call that split mainly along party lines.

This is not a good sign. If Title I and Title II of the Senate-passed Intelligence Committee bill are voted on separately in the House, the Blue Dogs have the ability to vote with the Republicans and pass the Senate bill in two parts. Title II, of course, is where retroactive immunity for big telecoms resides. And I’ll repeat – this style of voting on the Senate bill would make it more likely the retroactive immunity would pass through Blue Dog Democrats voting with the Republican caucus in the House.

I don’t know why the House leadership, who has been steadfast against the bad Senate bill, would suddenly let the Senate bill the one that is voted on to move forward. It makes no sense. The overwhelming majority of House Democrats don’t want a bill that includes retroactive immunity and bad wiretapping oversight. But the Senate bill that would be receiving votes under this deal would be just that. Clearly in the closed-door negotiations with pro-Constitution Democrats, Jay Rockefeller has refused to budge.

It’s also interesting that, in the end, the main sticking point in Title I is the Senate bill’s failure to include exclusivity. This fight remains one area where the Bush administration is most clearly seeking congressional approval for their radical theories of executive power. It would be an epic failure if the House passed legislation that did just that. FISA says it is the exclusive means for conducting electronic surveillance on Americans. That law did not change when George W. Bush took office and it did not change on September 11, 2001. Exclusivity is one of the key reasons that Bush’s warrantless wiretapping program was and is illegal. We cannot let the law be changed to legitimize Bush’s theories of a unitary executive.

While it’s still possible, we need to let the House hear from us to say we don’t want retroactive immunity. Not in the Senate passed bill. Not in any other. Use the contact tool from CREDO Action to tell your rep to oppose retroactive immunity, no matter how it’s presented to them.

31 thoughts on “Potential Deal Could Assure Retroactive Immunity

  1. Aaack! What happened to the spine that the House was showing? Voting on the Senate bill in two phases would be an unmitigated disaster and likely lead to giving Bush and Jello Jay everything they want.

    I am confused, though. Wouldn’t they have to amend the appropriate title to include exclusivity? Wouldn’t that be just as likely to fail as retroactive immunity since Bush has said exclusivity is another issue over which he would issue a veto?


  2. The exclusivity section is included in the current House legislation, the RESTORE Act. I’d assume that one of the sticking points in the Senate-passed bill is what to do with its lack of exclusivity.

    My guess is Rockefeller and Reid don’t want to send Bush a bill that he will veto, while the House leadership is fine with it. I’m not sure why Rockefeller is continuing to get to drive the legislative process.


  3. Matt,
    Thanks for this report, although it is distressing. I am hoping that the House won’t do anything, and leave the RESTORE act, unchanged, on the table. Then we’ll just have to fight it out in Conference– but unfortunately Jello Jey sits on that committee, too.

    Bob in HI


  4. This is not going to make the lawyers happy. They were drooling over the idea of multiple lawsuits against the telecom companies that were helping the government stop further attacks here.


  5. jbenson2 – You’ve got your facts wrong. The cases being brought (40 of them) are being brought by non-profit organizations, the EFF and ACLU. They make no money on these lawsuits.

    I know it’s a common talking point to blame everything on the trial lawyers, but the trial lawyers have said they’re not lobbying on this. So, it just doesn’t hold water.


  6. Richie Rich – I don’t doubt that there are some Democrats who are petrified of the sort of spurious attack ads we’re already seeing being run by Foundation for Defense of Democracies on a number of freshman Dems being run against a wider target audience. Hopefully those fearful Dems will end up caring more about the Constitution and, you know, facts than about Republican attack ads. But I’m not optimistic.


  7. The lawsuits are from nonprofits and not lawyers eh? I’m sure nonprofits don’t compensate the lawyers they use right? This would be hilarious if it weren’t so pathetically demonstrative of how easy it is to fool a liberal.


  8. DaMav –
    Oh yes, I’m sorry. Because lawyers are paid a salary from non-profits, my argument is wrong? Thanks for telling me! Your whole “Dems are in the hock to trial lawyers” line of argument only works if the lawyers are being compensated based on the verdict of the trial – not a salary.

    Here’s some info on the EFF lawyers compensation:

    Most of the EFF lawyers worked in those big fancy firms for big fancy salaries, and took big paycuts to join us, because they wanted to do personally fulfilling work and feel like they were making the world a better place.

    What I tell young lawyers who come to me and say: “I really want to work for EFF — you have such great lawyers,” I say: “Take your current paycheck, rip it in three pieces, take any third, and that’s about what you’ll get working for EFF.” The lawyers who work for EFF are making some of the biggest contributions to this organization, because they are making far less than they could on the open market in exchange for being able to work on things they believe in every day.

    If you honestly think the fact that some non-profits pay their lawyers a small salary and that these lawyers do not have any personal financial gain from the outcome of lawsuits against the telecoms is reason for the Dems to block immunity and let these cases proceed, you’re just not an intellectually honest person.


  9. @Hamlin
    Oh that really brings tears to my eyes, I had no idea how tough it is to be a lawyer sharing in the proceeds of multibillion dollar lawsuits if they are allowed to proceed. That oinking sound we hear wouldn’t have anything to do with the fact that most of the Representatives trying to kill the immunity are awash in contributions from legal firms and lawyers lobbyists.

    Baghdad Bob or Jedi Mind Trick? There are no greedy lawyers here. These are not the pigs at the trough you are looking for.

    You are proposing that they are pouring all this money into defeating the immunity provision so that they can shiver in unheated offices living out their vow of poverty. Hmmmm. Pathetically demonstrative indeed.


  10. You are proposing that they are pouring all this money into defeating the immunity provision so that they can shiver in unheated offices living out their vow of poverty.

    No, as I said above, the trial lawyer lobby is not spending any money to defeat retroactive immunity. The people who are working on the EFF and ACLU cases are doing so because they believe in defending the Constitution, protecting civil liberties, and standing up for the rule of law. The fact that those people work on salary is immaterial – it’s not the reason they’re doing what they do.

    I’m sorry that sounds so unbelievable to you, but fortunately your concerns about the lawyers advocating on the behalf of the plaintiffs is really no material to the prospects of these cases moving forward.


  11. Lou Dobbs for president! Tell both parties we’re tire of their shenanigans. Both parties are in bed together with the global elitists and all three branches of government are now working in unison. The people have no voice!


  12. The ACLU makes no money on these lawsuits? Are you that uninformed or are you a liar?

    The ACLU, contrary to popular opinion, does not finance its spurious lawsuits by donations: it does so by settlements and judicial orders to pay legal costs. The ACLU pads these “costs” up so as to provide a tidy profit for other, less profitable cases. The entire raison d’etre of the ACLU is to pursue lawsuits, allowing it pursue more lawsuits with the proceeds.


  13. I can’t wait to see the right- wingers’ fat faces when President Obama has unlimited power to spy on all domestic electronic communication without any oversight.


  14. Well, so now you admit you are full of shit, and it IS because the lawyers will make a boatload of money.

    So much for your point, which I guess you just conceded.


  15. I can’t wait to see the right- wingers’ fat faces when President Obama has unlimited power to spy on all domestic electronic communication without any oversight.

    I would love to see the lefties skeletorish mugs were a President Obama decide to spy on Americans without any oversight. “Change”, you say?

    Eh, its all academic anyway. McCain wins by four.


  16. I just do not see this as a winning strategy for the Democrats: Vote for us, and we will protect your right to communicate with suspected terrorists overseas without fear of being found out. We support privacy so much, we will even protect the rights of terrorists overseas to talk among each other without the CIA listening in. Vote for us and we will allow punitive lawsuits for 11x the Gross Value of companies who actually work with the US.

    This is self-destructive behavior at its worst. I do not mind when the Dems do dumb stuff to themselves, but I do mind when that dumb stuff puts my life in danger.


  17. Georg, nothing you have said in your description of what Democrats are advocating is factually correct.

    Here’s a really simple thing that someone who spends the time to post any thoughts to the internet should know: The US government does not need a warrant to monitor terrorists communications overseas. A warrant is only required if one party is in the US. That’s it. And they don’t even need the warrant before wiretapping begins.

    You are not in danger. You are just as safe as you were since 1978 through August 2007. Warrants under PAA are valid for one year. Calm down, buddy.


  18. *sigh* Let me try again.
    If you walk across the US border, you may be searched with no warrant required.
    If you carry a bag across the US border, it may be searched with no warrant required.
    If you send a letter or package across the US border, it may be searched, with no warrant required.
    If you transmit a file/telephone across the US border, it may be searched with no warrant required *except* that the FISA court has recently determined that it does require one under the current FISA laws (hence the sudden flurry of activity). This put a cork in one of the major tools the intelligence agencies use, keyword/phrase searches, which have been responsible for several verified busted terrorist ops (and quite a few dead ends). Without full cooperation of the telecoms, we cannot do these kind of searches. Without these kinds of searches, there will be more un-caught terrorist ops. And more dead Americans.

    Example: Operatives report that Operation X is being talked about in terrorist circles, and is supposed to “Smite the Great Satan” next week. Plugging this phrase into the search shows a few thousand hits, which is added into existing intelligence to determine if there is a pattern.

    Telecom billing records are a treasure trove, buried in a billion tons of sand. Despite their avowed hatred of technology, many terrorists chat back and forth on an irregular basis over many months during the planning and execution phase. When the cops pick up a mobster, the first thing they do is run a check on his phone and email, same thing with terrorists, but international in scope.

    Example: A terrorist C in Iraq is found with a cell phone. Backtracking through the phone companies we find out who he talked to and when. We then can backtrack who called the people he talked to and when. Eventually we find out that A called B who called C on a certain date. A also called M at about the same time for about the same number of minutes, who then called X, who then receives a bit of well-deserved investigation.

    Therefore without an update to the FISA law *and* telecom immunity, our intelligence agencies will be deprived of an effective tool in the fight against modern terrorism.


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