Signs of life from House Democratic leaders

The surprisingly good FISA bill they unveiled, and their genuine efforts to compel Bush officials to comply with subpoenas, may signal a real change in behavior.

By Glenn Greenwald
Published March 12, 2008 12:15PM (EDT)

(updated below)

Fully recognizing it may not last any longer than a couple of weeks, it's actually necessary to give some credit where it's due -- to the House Democratic leadership. Nobody expected that they would ever allow the Protect America Act to expire, yet they did. And nobody expected, especially after the meek and incoherent appearance of Silvestre Reyes on CNN last weekend, that they would ignore the barrage of Terrorist-Lover accusations from the President and unveil yet another bill that is actually decent and refuses to bestow lawbreaking telecoms with amnesty, but they now have.

Add to that the fact that they actually seem serious about pursuing a court battle to force Josh Bolton and Harriet Miers to comply with their Subpoenas, and one detects a possible change in their approach. There is perhaps a stirring of recognition among House Democrats that there is no political cost to standing against this President on vital matters -- even ones involving the magic Terrorism word -- and there might even be real political benefit.

With regard to yesterday's FISA bill, more surprising than their defiance is their shrewdness. By including a provision that explicitly authorizes telecoms to submit to the court any exculpatory documents -- notwithstanding the assertion by the administration that those documents are subject to the "state secrets" privilege -- the House bill completely guts, in one fell swoop, the primary argument that, for months, has been made by telecoms and their allies as to why amnesty is necessary.

As Marcy Wheeler documented several months ago, the primary -- really the sole -- excuse given by the Senate Intelligence Committee as to why telecom amnesty was necessary was that the telecoms did nothing wrong but were being blocked by the administration from using the documents they have to prove it. From the Committee's report recommending telecom amnesty:

To the extent that any existing immunity provisions are applicable, however, providers have not been able to benefit from the provisions in the civil cases that are currently pending. Because the Government has claimed the state secrets privilege over the question of whether any particular provider furnished assistance to the Government, an electronic communication service provider who cooperated with the Government pursuant to a valid court order or certification cannot prove it is entitled to immunity under section 2511(2)(a)(ii) without disclosing the information deemed privileged by the Executive branch.

It's critical to emphasize -- as that passage references -- that the telecoms already have immunity under existing statutes, even if they broke the law, as long as they obtained from the Attorney General certifications that the warrantless surveillance requests were legal. If the telecoms really did obtain those certifications -- and it's extremely unlikely that they did -- then all they ever had to do was just show them to the court and they would be immune. Their excuse up until now -- "we can't use the documents we have to defend ourselves because we aren't allowed to show them to the judge" -- is now completely eliminated by the House bill.

I actually wrote about exactly this solution a couple of months ago because EFF, whose legislative and legal staff devised this proposal, had been touting it as the best and smartest way to defeat the telecoms' arguments without granting immunity:

Even if Rockefeller were telling the truth when claiming that telecoms were unable to submit exculpatory evidence to the court (and he isn't), then Congress could just easily fix that problem in one day. All they have to do is amend FISA to make clear that telecoms do have the right to submit such evidence to defend themselves notwithstanding the President's utterance of the all-powerful magic phrase "State Secrets." And then this oh-so-unfair problem would be instantly fixed.

It's borderline-shocking to see the House so responsive to the solution EFF created and to do something this tactically and substantively smart.

* * * *

The shrewdness of what House Democrats did is reflected in today's news accounts reporting on their bill. Almost every news article frames the House Democratic bill not as a refusal to protect telecoms, but rather, as "offer[ing] the companies an olive branch: the chance to use classified government documents to defend themselves in court." This is the headline for today's Washington Post article: "Relief for Phone Firms Proposed."

It's a clear, easy-to-understand, and intuitively fair way to give the telecoms all the protection they've been saying they need to defend themselves in court -- a true "compromise," rather than a Beltway "compromise" (which means: "Bush makes demands and Democrats ultimately agree"). Now, if telecoms really did nothing wrong, if they really did comply with the law, they can just go to court and easily demonstrate that. Who could possibly object to that?

Notably, House Democrats actually sound more confident now, as they're saying things like this:

"We are not going to cave in to a retroactive immunity situation," Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said. Democratic leaders said that they think they could pass the bill with support from the moderate-to-conservative Blue Dog Democrats. "I'm feeling very confident," Majority Whip James E. Clyburn (S.C.) said.

At the very least, the more resolution is delayed, the longer this drags on, the higher the probability that amnesty and warrantless eavesdropping can be blocked. I recall back in January and February, 2006 -- in the months immediately following disclosure of the illegal NSA program -- the conventional wisdom was that the GOP-led Congress would quickly vote to legalize the program and end the scandal with ease. But Russ Feingold unexpectedly introduced his Censure Resolution, Arlen Specter changed his position on an almost daily basis, hearings ended up being held by the Judiciary Committee, and just enough delay occurred to drag it out to the November mid-term elections without resolution.

That can easily happen here. All other considerations to the side, the more time that elapses without smooth capitulation to the White House, the better. One never knows what unexpected developments might occur that could derail this corrupt proposal permanently -- such as this week's disclosures of how vast is the NSA's warrantless domestic spying into emails and calls. As Bush weakens further, as other issues arise which consume media attention, as House Democrats see that these fear-mongering campaigns no longer work, inertia alone can prevent this from happening.

* * * *

There is obvious passion and intensity among many Americans for defending basic constitutional liberties and the rule of law. In one day yesterday, an astounding $40,000 was raised for an ad campaign directed at selected House Democrats over this issue -- an amount made all the more astounding when one considers that: (a) the campaign was mentioned by only a handful of blogs, six or seven at the most; (b) the fund-raising aspect of the campaign wasn't really emphasized because yesterday was merely an effort to introduce the strategy involved; and (c) it happened on a day when there was no real event relating to FISA, and when other stories -- particularly the exciting voyeurism over Eliot Spitzer and the presidential primaries -- were sucking up most of the oxygen. That's a lot of money to raise in one day by a handful of blogs and it reflects real passion and commitment on this issue among Americans, far more passion than advocates of telecom amnesty and warrantless eavesdropping could ever muster for their corrupt, self-interested cause.

Even as late as yesterday, the assumption was that House capitulation was inevitable and that those ads would be punitive as much as anything else, designed to impart a lesson. But the House bill is impressive, suggestive of at least the possibility that they intend to do what they can to hold firm, and the real effect of the ad campaign now might actually be instead to pressure wavering members and try to affect the outcome of the debate.

In my view, as critical as surveillance safeguards are, the issue of telecom amnesty is still the most important one. Without the telecom lawsuits being allowed to proceed, it is extremely unlikely that we will ever learn about, and especially obtain accountability for, the years-long lawbreaking by the Government in how it spied on Americans. Having real accountability for that lawbreaking and the severe abuse of power that caused it is a prerequisite for preventing it from occurring again. The House's proposal to have a Commission investigate the President's TSP is encouraging, but it is vital that there be accountability in an actual court of law for those in both the public and private sector who deliberately broke our laws for years. That's why resistance on the issue of telecom amnesty is so vital.

Nobody who has watched the Congress carefully over the past few years could possibly be confident in the outcome here, no matter how many positive signs one sees. Optimism of this sort has been shattered way too many times -- every time, actually -- and it's impossible, at least for me, to assess these matters with anything other than a high dose of cynicism about intentions and about the likely outcome. But cynicism isn't the same as defeatism. By withstanding the attacks this long, and introducing that surprisingly good bill yesterday, the House Democratic leadership has at least preserved the possibility that there could be a good outcome here, has at least given a rational ground for believing that there's a reason to continue to work to affect what happens here. That's at least something.

UPDATE: Members of the House Judiciary Committee have now finally been able to review the documents relevant to the telecom's claims which the Senate long ago reviewed. Chairman Conyers and 19 Members of the Committee have now issued a comprehensive report concluding that "the Administration has not established a valid and credible case justifying the extraordinary action of Congress enacting blanket retroactive immunity as set forth in the Senate bill." The report is quite well-argued and thorough.

Glenn Greenwald

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