House Democrats Preparing to Back Down on Retroactive Immunity

Democratic House Intelligence Committee Chair Silvestre Reyes, February 14th, in a letter to President Bush:

You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.

Silvestere Reyes, March 2nd, on Late Edition with Wolf Blitzer (video at Crooks & Liars):

Mr. Reyes did not specify what provisions a House bill might contain. But his use of the words “blanket immunity” suggested that he might be moving toward a Senate bill, backed by Mr. Bush, that would protect phone companies that assisted in a federal program of wiretapping without warrants after the Sept. 11, 2001, terrorist attacks.

“I have an open mind about that,” Mr. Reyes said.

“We’re very close,” he added. “Probably within the next week, we’ll be able to move hopefully to bring it to a vote.”

Reyes is shifting from a strong position in opposition to retroactive immunity to being willing to include immunity in a deal to get a vote on FISA legislation. It looks that Reyes is moving towards the Senate-passed SSCI bill that includes retroactive immunity in Title II. One would assume that if the House Democrats are caving on retroactive immunity, they would at least get very strong Title I provisions governing congressional oversight of domestic surveillance activities and an exclusivity provision. No information suggesting this sort of deal is forthcoming, though.

In a political environment that fetishes bipartisanship and deal making, it wouldn’t be shocking that House Democrats sought compromise legislation that mixed and matched Title I and Title II provisions from the House and Senate bills. While I would not support legislation that traded good oversight for retroactive immunity (or, alternatively, poor oversight for no immunity), at least that brand of Beltway deal-making would produce something worthwhile in return for whatever Democrats are tangibly giving up. The added bonus is that a deal on those terms that produced legislation that included either no immunity or exclusivity, minimization, no basket warrants, would create a scenario where Bush was likely to veto the legislation. But we have no indication that this is what we actually would be getting in the deal described by Reyes and I’m no longer willing to give House Democratic leadership the benefit of the doubt on their ability to produce good legislation from negotiations with Jay Rockefeller and Senate Republicans. My good will went out the window when Reyes appeared on CNN touting a possible deal that includes retroactive immunity, something he’d previously blasted as unnecessary for legislation intended to pertain to our security.

As Glenn Greenwald notes, this is a very bad sign and it makes one wonder why the House Democrats even bothered to get our hopes up that they would stand on political principle, in opposition to the destructive desires of George Bush and Dick Cheney.

We need to put pressure back on the House of Representatives to demand that they oppose retroactive immunity. House Democrats must reject any deal that includes immunity. The House-passed RESTORE Act is a good piece of legislation and there’s zero reason for House Democrats to replace any parts of their FISA legislation with the bad Senate bill. Contact your representative in Congress today through CREDO Action and ask them to oppose any legislation that includes retroactive immunity.


Cross posted at the CREDO Action Blog.

6 thoughts on “House Democrats Preparing to Back Down on Retroactive Immunity

  1. Join me in writing Congress about this outrage now! Feel free to use the below.

    Dear Congressman Reyes:

    How could you do this to Glenn Greenwald? Don’t you realize what having an open mind does to people like Glenn? He has put months of his own life into this, every waking moment obsessing about it, writing about it, talking about it, singing about it, and (hopefully not speaking out of school here) ranting about it while using the bathroom.

    Yet here you and the Democrats in Congress are, talking about having an open mind on the matter, like it was no big deal. Oh sure, be open minded. Be open minded all you want. But don’t forget that by being open minded you are crushing not only poor Glenn but dozens of other Americans who have savored the very thought of putting it to the phone companies, raking in the lawyers dough, and making Glenn very happy in the process.

    I hope you will consider what you are doing and reconsider your open mindedness before it is too late.




  2. Expressing concern for Glenn is now hating our freedoms? Maybe you ought to consider the human cost of this settlement.

    Imagine the plight of the lawyers! Trillions of dollars, literally trillions of dollars down the drain in a blink of the eye. Talk about a “hold the Beluga, we’ll try the Salisbury Steak” moment. And the children will not escape unscathed. I’m sure there are plenty of “I know we said Princeton, but look at these nice course descriptions at East County VoAg” going on over this news.

    Believe me, I don’t mean to minimize the squeeze on freedom some will feel when they are up for a nice chat with their favorite al Qaeda operative, exchanging recipes or whatever. But lets not ignore the carnage this will create amongst the barristers, many of who generously contributed to the same Congressional Reps now threatening to keep an open mind.

    We need to stick together and make our voices heard. Don’t leave the people impacted out of the equation.


  3. Expressing such disdain for the US Constitution sounds like hating our freedoms. Maybe you’re unaware, but the US Constitution allows for citizens to petition their government.

    It is remarkable how you think this is about lawyers. You must be adept at reading the minds of everyone advocating against retroactive immunity, as no one has ever cited the financial concern for lawyers as a reason to oppose the Congress stepping in and making the extraordinary move to shut down pending cases before the courts. It’s a shame you’re not using your awesome powers of telepathy for good. Think of all the crimes going unsolved!


  4. I can just see how this could play out in a few years.

    *Transcript from the Red Phone in the White House*
    Hillary: Hello, is this the CEO of Verizon/Sprint/ATT?
    Voice: Yes Madame President, how can I help you?
    Hillary: The FBI needs a listing of all cell phone calls made in the Washington DC area over the last three days in order to track a suspected bomber, and your company refuses to give them to us.
    Voice: As I explained before, without a FISA warrant for each individual phone in the request, we are unable to comply with your request without exposing our company to another lawsuit like the one we settled back in 2009 that resulted in the merger of our companies. With our current negative net worth, we just can’t afford the risk. We’re sorry.
    Hillary: Listen you *transcript censored for 3 minutes* and we think it could be nuclear. You either give us those call records or we will *redacted for 3 minutes*
    Voice: I am very sorry Madam President. We will be more than happy to help you once the FISA warrants are procured, and the check clears in seven to ten days. If you are still there.


  5. Ahh another person unfamiliar with what FISA actually says!

    The government can begin a wiretap and not secure a warrant for up to 72 hours afterwards.

    Telecom companies are required under FISA to help when the government asks and has a court order (or if the government gets a court order within 72 hours).

    FISA has worked for over 30 years. It has been updated over 50 times, including after 9/11 to include everything the President needed to monitor cell phones and internet traffic.

    So, as scary as your fake transcript sounds, it has no basis in reality and thus, is not scary at all. Sorry, I hope you didn’t wet your pants thinking of how scary that fake scenario would be.


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