House Democrats reject telecom amnesty, warrantless surveillance

Finally, we have some genuine resolve and defiance in favor of the rule of law and basic constitutional protections.

By Glenn Greenwald
March 14, 2008 9:59PM (UTC)
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(Updated below - Update II - Update III - Update IV - Update V - Update VI)

The House just now approved a new FISA bill that denies retroactive immunity to lawbreaking telecoms and which refuses to grant most of the new powers for the President to spy on Americans without warrants. It passed comfortably, by a 213-197 margin.


Notably, many of the 21 "Blue Dogs" who previously signed a letter indicating their support for telecom immunity and the Rockefeller bill -- including several of the six whom the highly successful blog fund-raising campaign earlier this week targeted -- voted (and spoke) in support of the House bill (only 10 Democrats voted against the bill, including at least a couple of progressives who think the bill doesn't go far enough). Many of those Blue Dogs were persuaded to support the bill by the protections which the bill offers to telecoms (i.e., authorizing them to introduce even classified evidence in the lawsuits to prove they complied with the law, if they actually did).

As impressive as the House vote itself was, more impressive still was the floor debate which preceded it. I can't recall ever watching a debate on the floor of either House of Congress that I found even remotely impressive -- until today. One Democrat after the next -- of all stripes -- delivered impassioned, defiant speeches in defense of the rule of law, oversight on presidential eavesdropping, and safeguards on government spying. They swatted away the GOP's fear-mongering claims with the dismissive contempt such tactics deserve, rejecting the principle that has predominated political debate in this country since 9/11: that the threat of the Terrorists means we must live under the rule of an omnipotent President and a dismantled constitutional framework.

It is possible that the House will ultimately end up capitulating to the President, but I have real doubts about whether that will happen. They have defied the standard GOP Terrorism-exploitation attacks for weeks, allowed the Protect America Act to expire (once the President refused to extend it), and now passed a very good bill even in the midst of intense GOP/media attacks. They did so as a result of a shrewd strategy and a willingness to frame and engage the debate aggressively. My views on the bill, and the unexpectedly commendable behavior of House Democrats, are here, from earlier in the week.


It's hard not to believe that there's at least some significant sea change reflected by this. They have seen that they can defy the President even on matters of Terrorism, and the sky doesn't fall in on them. Quite the opposite: an outspoken opponent of telecom amnesty, warrantless eavesdropping and the Iraq War was just elected to the House from Denny Hastert's bright red district, and before that, Donna Edwards ousted long-time incumbent Al Wynn by accusing him of being excessively complicit with the Bush agenda.

Virtually every one I know who has expended lots of efforts and energy on these FISA and telecom issues has assumed from the start -- for reasons that are all too well-known -- that we would lose. And we still might. But it's hard to deny that the behavior we're seeing from House Democrats is substantially improved, quite commendably so, as compared to the last year and even before that. It's very rare when there are meaningful victories and I think it's important to acknowledge when they happen.

UPDATE: The roll call vote is here. Four of the six Democrats named as fundraising targets voted for the bill (Space, Boswell, Ellsworth and Barrow), while only two voted against (Shuler and Carney). The funds that were raised will be able to be used quite constructively. All Republicans marched in lockstep, as always, voting unanimously against the bill. Only 5 Blue Dogs voted against the Bill; the vast majority voted in favor (5 progressive Democrats voted against as a protest).

One of the 21 Blue Dogs previously expressing support for telecom amnesty -- and who was also one of the six targeted by our fundraising campaign -- was Leonard Boswell of Iowa. Here is what he said when explaining why he voted for the House bill:

Those who feel their civil rights have been violated can seek justice and telecoms who feel they have complied with the law can have a judge review the classified evidence and decide. This means to me that the Constitution and civil rights are protected and telecoms who are asked under pressure to assist in an emergency can know that classified evidence will be seen by a judge . . . . The bill provides telecom companies a way to present their defense in secure proceedings in a district court without the administration using state secrets to block the defense.

As McJoan notes, a primary challenge he is facing undoubtedly helped move him to the right position.

The statements of EFF and the ACLU, both of which support today's vote, are here and here, respectively. And here is what one of the House's most superb members, House Intelligence Committee Member Rush Holt, said today:

UPDATE II: It is, of course, true that this bill will have a hard time passing the Senate (though if even most House Blue Dogs were persuaded to support this bill, why can't most Democratic Senators who previously voted for the Rockefeller bill be persuaded?). It's also true that even if it did pass the Senate, the President will veto it, and there won't be enough votes to override the veto. So this bill won't become law, but that doesn't matter.


The reality is that the best possible outcome here is nothing -- we lived quite well for 30 years under FISA and if no new bill is passed, we will continue to live under FISA. FISA grants extremely broad eavesdropping powers to the President and the FISA court virtually never interferes with any eavesdropping activities. And the only "fix" to FISA that is even arguably necessary -- allowing eavesdropping on foreign-to-foreign calls without warrants -- has the support of virtually everyone in Congress and could be easily passed as a stand-alone measure.

What matters is not that this bill becomes law, but that the Rockefeller/Cheney bill does not. And House Democrats, including Blue Dogs, are obviously comfortable with defending the bill they just passed as more than sufficient to protect the nation, extend fairness to telecoms, and safeguard basic liberties. So there should never be any reason why they feel compelled to vote for the Rockefeller/Cheney bill, or any bill granting amnesty, given that they have just done their jobs. That is the real benefit of today's vote.

UPDATE III: I just spoke with Rep. Rush Holt regarding today's vote, and the discussion can be heard here. Holt is one of the most knowledgeable members of Congress on surveillance and intelligence issues and was instrumental, from the beginning, in working to ensure that the House would pass a good bill. And he articulates quite well why this bill is far superior to the Rockefeller/Cheney Senate bill.

After a year's worth of headlines proclaiming that Democrats have "surrendered," and "bowed" and "capitulated" to one of the most unpopular Presidents of all time -- complicity which, in turn, made the Congress itself increasingly unpopular -- these are the types of headlines they will generate today, from CNN:

They were given control of Congress to do exactly that -- "challenge" the President. If Americans wanted a Congress that bowed to him, they would have left the Republicans in control.

UPDATE IV: The Washington Post's Jonathan Weisman did a good job of describing the significance of today's events, and included a very important new fact:

The House's action ensures that Bush will not receive surveillance legislation for several weeks. But some lawmakers from both parties said the impasse is now so deep that the issue may not be resolved until a new president takes office next year.

Bush and Republican lawmakers have shown no desire to move further toward the House Democratic leaders' position, and the Democrats are showing no sign of buckling under the mounting political pressure.

Since the Sept. 11 attacks, such showdowns have followed a predictable path: After some protest, Democrats have given in to White House demands, fearing the political fallout as Bush hammered them for allegedly jeopardizing American lives. . . .

Bush appeared on the White House's South Lawn yesterday to demand House passage of the Senate legislation, warning lawmakers that "voting for this bill would make our country less safe. . . . The American people understand the stakes in this struggle. They want their children to be safe from terror" . . . .

Then the House went off script. House Speaker Nancy Pelosi (D-Calif.) responded to Bush's appeal, all but calling the president a liar.

That pretty much sums up the unexpected though astoundingly good series of events this week. And I just need to repeat this because it's symphonic in its beauty: "the impasse is now so deep that the issue may not be resolved until a new president takes office next year." That sentence should be set to music.

UPDATE V: As I wrote earlier this week, and several commenters today noted, the press coverage of this fight has been substantially better because House Democrats have been much more assertive about making their case. Thus, as Scientician notes, the New York Times's Eric Lichtblau today fact-checked one of the White House's principal (and most deceitful) claims:

Even before the first vote was cast in the House, Mr. Bush assailed the Democrats proposal in remarks at the White House on Thursday . . . .

"Companies that may have helped us save lives should be thanked for their patriotic service, not subjected to billion-dollar lawsuits that will make them less willing to help in the future," the president said. "“The House bill may be good for class action trial lawyers, but it would be terrible for the United States."

In fact, while some private lawyers are assisting in the litigation, the groups leading the efforts, including the Electronic Frontier Foundation and the American Civil Liberties Union, are nonprofit advocacy groups.

When you make yourself heard, you will be heard. The NYT article added that this "is one of the few times when Democrats have been willing to buck up against the White House on a national security issue."

UPDATE VI: Two weeks ago, after Chairman Reyes went on CNN and suggested Democrats might be open to compromising on telecom immunity, The Weekly Standard's Michael Goldfarb gloated as follows:

Victory on Telecom Immunity, Greenwald Hardest Hit

The government shows up at your office just days after the 9/11 attack and asks for your help in the war on terror. What are you going to do? According to Glenn Greenwald, you should call a lawyer (isn't that always what the lawyers say). But telecom executives did the only thing they could do -- assist the government in whatever way possible. . . .

After months of demagoguing the issue, the Dems in Congress are finally going to cave and grant the firms immunity from lawsuits that are not only frivolous, but a threat to national security.

Meanwhile, Glenn Greenwald, who's devoted the last three months of his life to this issue, is despondent . . . . And to think of all the other things Glenn Greenwald could have not achieved over the last few months were his energy and resources devoted to other hopeless crusades!

Does The Weekly Standard ever publish anything at all -- on any topic -- that doesn't turn out to be humiliatingly false?

Glenn Greenwald

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