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.

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Cross posted at the CREDO Action Blog.

Shorter Glenn Greenwald: The civil liberties debate in America isn’t what it used to be.

Back then, the premise that unchecked presidential spying would lead to massive abuses — as it did for decades — was just a given, something beyond the realm of what could be reasonably debated. Now, only far Left partisans worry about such silly things.

…

Back then — with a relentless, ideologically extreme Evil Empire threatening our very existence and our freedoms — GOP fear-mongering was brushed aside. The political establishment overwhelmingly concluded that warrantless eavesdropping presented intolerable dangers, and many believed that FISA’s “safeguards” were actually woefully inadequate. Telecoms lobbied on behalf of their customers’ privacy rights and against being drawn into government surveillance. Editorial boards were almost unanimously on the side of greater oversight on presidential spying.

That all seems so quaint. The mindset which back then defined the radical, pro-surveillance right-wing fringe has now become the sweet spot of our political establishment. The GOP fear-mongering that back then was laughed away today dominates our discourse and shapes our laws. The secret FISA court which back then was viewed even by some conservatives as an extreme threat to civil liberties is now the outermost liberal viewpoint, one that is about to be ejected altogether by the Democratic Congress from the mainstream spectrum. The political establishment today knows only one viewpoint: literally no limits are tolerable on the power of the loving, protective Surveillance State.

Greenwald points out that the FISC, as a secret court which only government officials have access to, has long been thought to be a threat to civil liberties. Now, returning to a time where FISA regulates all electronic surveillance and we rely on the FISC to grant warrants for the surveillance represents a very “liberal” stance on civil liberties.

It truly is remarkable to consider how far the Bush administration has brought this country from a time where the civil liberties of citizenry were respected and protected.

The plaintiffs of one of the lawsuits against the telecom companies have written an op-ed in the Chicago Tribune about why they sued AT&T. Their suit would be killed by legislation that includes retroactive immunity. There’s been a lot of questioning from the right about the motives of the plaintiffs and the lawyers to sue the telecoms and subsequently desire the suits to move forward like all other lawsuits in the history of American jurisprudence. The op-ed answers these questions

The Bush administration and its supporters in Congress complain that these lawsuits are simply about money and enriching trial lawyers — suggesting that the litigation should be stopped because of the potential damages that might be awarded in such lawsuits. This criticism ignores the fact that, according to the rules in the federal court, the only way that we could ensure that a federal judge could continue to explore previous violations if the companies simply changed their participation or the government changed or ended the program was to ask for minimal damages. We are not interested in recovering money for ourselves, nor is our counsel, the American Civil Liberties Union of Illinois. We, however, are committed to assuring that these giant companies are punished for violating the law and thus dissuaded from violating the law in the future.

More important, amnesty not only lets the companies off the hook without answering any questions, it assures that the American people will never learn about the breadth and extent of the lawless program. Some seem to suggest that we should not have our day in court because a select few members of Congress have been able to review documents about the spy program operated by the White House. The judgment of a few Washington insiders is not a substitute for the careful scrutiny of a federal court.

Congress is supposed to act to protect the rights of American citizens, not sacrifice those rights to large corporate entities. The House and Senate should resist the bullying tactics of the Bush White House and ensure that we have our day in court to vindicate our rights and reveal any illegality engaged in by the telecoms. We need to know about the Bush White House’s secret program. [Emphasis added]

There is a wide gap between self-interest and the rule of law. The plaintiffs in this case, at least, are seeking the same treatment under the law as any others. This is not a radical idea, but rather one of the most fundamental principles of American society. Granting retroactive immunity to the telecom companies that helped the Bush administration spy on Americans without warrant would seriously undermine the rule of law. It would show that you are only subject to the law as long as you don’t have powerful allies in Congress.

The plaintiffs are right – Congress must not grant retroactive immunity to the telecoms.

In today’s New York Times, Eric Lichblau has an article going about how the current telecom debate is not focused on any security related matters, but instead hinges on granting retroactive immunity to telecoms that helped the Bush administration spy on Americans.

The warnings from President Bush and his senior aides have grown more urgent over the last few weeks, now that Congress has let a temporary wiretapping law expire. But there is little sign of anxiety among many intelligence and phone industry officials.

At the Pentagon and the military’s Central Command, senior officials gave no indication of any heightened concern about the lapsing of the law. In Congress, staff members with access to updated briefings said they had not been given any specific information about lost intelligence that might endanger national security. And in the telecommunications industry, executives said it was largely business as usual.

Indeed, for all the heated rhetoric in Washington about the government’s wiretapping powers, the debate over what a new surveillance law should look like has little to do with the present or the future and almost everything to do with the past.

At its crux, the debate is about whether Mr. Bush can give retroactive legal protection to telephone carriers that cooperated in the program of wiretapping without warrants he authorized weeks after the Sept. 11, 2001, attacks, a program that critics charge was illegal. [Emphasis added]

As long as intelligence professionals are not telling Congress that our ability to conduct electronic surveillance is not being impaired, I don’t see how the Bush administration will be able to pressure Congress into caving on immunity legislation. When the debate is solely hung up on immunity, it’s not likely to get Democrats to feel the need to pass legislation appeasing Bush and move on. Yesterday Republicans again refused to pass an extension of the Protect America AT&T Act, so the onus for new legislation is clearly not urgent, as the only additive to the law would be retroactive immunity. All other surveillance can continue for up to a year and new surveillance can begin up to 72 hours before a court order is required.

This system – FISA – has worked since 1978 with no known problems. It will continue to work tomorrow and the next day.

Lichtblau’s article makes the story in Congress Daily look more like a trial balloon. If the security apparatus isn’t driving a call for new legislation, I don’t see the Democrats in the House – who have been very strong in their opposition to the SSCI bill and retroactive immunity – caving to allow votes on bad legislation. Time will tell, but for now it’s important that Democrats in Congress listen to what the intelligence community is not saying to them about the state of our surveillance operations. All is well following the sunset of the Protect America AT&T Act and things continue to work under FISA. The need is for Congress to work on legislation that upholds the Constitution, ensures oversight of surveillance operations, and does not grant retroactive immunity to the big telecoms that helped the Bush administration illegally spy on Americans.