Eric Lichtblau of the New York Times reports a new possible deal on FISA coming out of the House:
The tentative proposal worked out by House Democratic leaders, officials said, has three main elements.
In continued defiance of the White House, House Democratic leaders are readying a proposal that would reject giving legal protection to the phone companies that helped in the National Security Agency’s program of wiretapping without warrants after the Sept. 11 attacks, Congressional officials said Monday.
Instead of blanket immunity, the tentative proposal would give the federal courts special authorization to hear classified evidence and decide whether the phone companies should be held liable. House Democrats have been working out the details of their proposal in the last few days, officials said, and expect to take it to the House floor for a vote on Thursday….
It would impose tougher restrictions on National Security Agency eavesdropping than the Senate version does by requiring court approval before the agency’s wiretapping procedures, instead of approval after the fact. It would also reject retroactive immunity for the phone carriers.
The proposal would also create a bipartisan Congressional commission with subpoena power to issue a report on the surveillance programs, including the one approved by Mr. Bush to monitor some Americans’ international communications without warrants.
The commission would seek to find out how the program was actually run. Some Democrats complain that even now, more than two years after the program was first publicly disclosed, many questions about its operations remain unanswered.
The idea of giving federal courts specific jurisdiction to determine the immunity issue is somewhat similar to a proposal made in the Senate by Senator Dianne Feinstein, Democrat of California. That was soundly defeated by a vote of 57 to 41….
Under the proposal, the courts would be given authority to hear classified evidence in the civil suits — perhaps on an “ex parte” basis, with only one side in attendance — to determine whether the companies are immune from liability. Officials said the proposal would most likely give that authority to a federal district court, but it is possible that the Foreign Intelligence Surveillance Court in Washington could be given that authority instead….
“This is not the end of the road,” the House Democratic staff member acknowledged. “We’re trying to build support for the provision.” [Emphasis added]
This is interesting in that it relies on the courts to determine if the telecoms should get retroactive immunity, but keeps the cases in regular federal court and not the secret Foreign Intelligence Surveillance Court. This is different from the Feinstein amendment Lichtblau refers to in the article. Feinstein’s “good faith” amendment to move consideration of cases to the secret Foreign Intelligence Surveillance Courts (#3919) failed 41-57. 60 votes were needed for it to pass. While the Democratic caucus was largely in favor of this, some liberal senators like Dodd and Menendez again voted against it for the special treatment it would have provided the telecoms. I do not know whether keeping the assessments of “good faith” in regular federal courts instead of the FISC removes the sense among liberal senators that the telecoms would be given special treatment.
While it’s good to hear that House Democrats are, in fact, continuing to resist putting forward legislation that includes retroactive immunity, this plan just doesn’t seem that likely.
Last Friday, when news broke that a deal was imminent that would hinge on the House ping-ponging legislation with the Senate, so the Senate would add retroactive immunity and the House – relying on support from the GOP and Blue Dog Dems – would approve the Senate bill, Senator Jay Rockefeller’s office quickly told TPM Muckraker that they would not agree to such a deal. That is, Rockefeller was going to use his position in the negotiations of the legislation to block approval of a ping-ponging strategy that didn’t include immunity in the House bill, even though that strategy was still almost certain to assure immunity passed. The takeaway from that was that Rockefeller continues to be the major hurdle for Democrats putting forward good legislation.
The proposal being floated now not only doesn’t assure retroactive immunity as Rockefeller wants it will not be guaranteed, but includes provisions that could preclude retroactive immunity from being added by the Senate. I don’t know whether this deal would include the ping-ponging strategy or not. But if the bill is likely to be substantially changed by the Senate, I don’t know whether the House Dems pushing for this particular deal would let it move forward.
What is most immediately apparent is that negotiations remain ongoing behind closed doors. We don’t know yet what the outcome will be, but we may continue to get various plans leaked to the press. We’ve had two conflicting outcomes floated in the last four days. They wide variance between the two suggests how far we may still have to go in the process.
One thing to keep in mind is that the Senate is in recess from March 15-30th and the House is on recess from the 17-28th. If negotiations aren’t resolved and voted on by the end of this week, it’s likely FISA won’t be resolved this month. Negotiations may continue during the recess, but no legislation will be voted on.
The bottom line remains the same. The House and the Senate have an obligation to not pass a bill that includes retroactive immunity nor support any legislative process that would guarantee retroactive immunity pass. If it is not possible for Democrats to put forward legislation that moves along a path that ensures that retroactive immunity is not granted to big telecom companies, then they have an obligation to the Constitution to put forward no legislation and wait until next year to address new FISA legislation.
I’ve just received clarification from a source on the Hill. The House provision on having courts handle the pending cases is not actually one of “good faith” like Feinstein’s amendment. The federal court would just evaluate whether what the companies did was legal under the law at that time. If the standard is legality and not the intentionality of the companies, then this is a much more attractive provision.