On Thursday night, the House held the first closed session meeting in 25 years in order to debate retroactive immunity for telecommunications companies who assisted the Bush administration in its warrantless surveillance program. [1] The session, requested by House minority whip Roy Blunt (R-Missouri), pushed back an upcoming vote (H.R. 3773) on updating the Foreign Intelligence Surveillance Act (FISA) to today.

    After the closed session, House Majority Leader Steny Hoyer responded, "I did not hear any new information tonight that dissuades me from my very strong belief that the FISA bill House Democrats have produced - and which the House will vote on tomorrow - is a reasonable, thoughtful, appropriate piece of legislation that will ensure that the intelligence community has all the tools it needs to protect our nation, while also respecting the constitutional protections that Americans rightfully feel are so important." [2]

    The vote on H.R. 3773, to take place later today, has prompted a contentious debate, given key differences between legislation proposed by the House and Senate. The House version omits a retroactive immunity provision for telecom companies present in the Senate bill and also seeks to establish more judicial oversight of the administration's surveillance program. [3]

    The unusual, secret House session came a month after the February 17 expiration of the Protect America Act (PAA) of 2007, signed into law in early August. The temporary, controversial law stated "[the intelligence community] must no longer obtain court approval when the target of the acquisition is a foreign intelligence target located outside the United States." [4]

    The PAA came about six years after the inception of the administration's secret surveillance program. On December 16, 2005, The New York Times reported that since shortly after September 11, 2001, the Bush administration, through the National Security Agency, has been eavesdropping on Americans and others inside the US without the necessary warrants. [5]

    Six months later, Bloomberg contended this program started even earlier - about seven months before 9/11. [6] This crucial distinction came to light amidst a lawsuit against AT&T, Verizon and BellSouth.

    This chronology was confirmed by former Chief executive of Qwest Communications International Joseph P. Nacchio. In an October 13, 2007, article, The Washington Post wrote that Nacchio claimed "Qwest's refusal to take part in [the administration's surveillance program] led the government to cancel a separate, lucrative contract with the NSA in retribution." [7]

    President Bush has vehemently criticized the House for neither renewing the PAA, nor granting indiscriminate, retroactive immunity to telecommunications companies: "Congress should stop playing politics with the past and focus on helping us prevent attacks in the future." Bush urged the House to take up the bill passed in the Senate, which included the immunity provision.

    Many in Congress dismiss this sort of rhetoric as a gross mischaracterization, since, according to The New York Times, "the House proposal was understood to give the federal courts special authorization to hear classified evidence and decide whether the phone companies should be held liable." [8]

    In a February 23 radio address, House Judiciary Committee Chairman John Conyers firmly disputed the Bush administration's claims that Congress is jeopardizing the safety of American citizens. "I introduced legislation that would have provided for a 21-day extension of the short-term [Protect America Act], which was otherwise due to expire on Saturday. Amazingly, the President opposed the extension, every House Republican voted against it, and the extension was defeated ... The President and House Republicans simply can't have it both ways. They cannot argue simultaneously that the temporary August law was essential to national security, and then turn around and engineer the defeat of an extension of it." [9]

    Conyers continued to downplay White House alarmism, stating, "well-established emergency provisions of the current surveillance laws are more than adequate to address any emergent threats." Quoting Assistant Attorney General for National Security Kenneth Wainstein, Conyers notes, "'[T]he directives that are in force remain in force until the end of that year.' That means the orders can continue through 2009. He went on to say: '[W]e'll be able to continue doing surveillance based on those directives.'"

    Conyers concludes: "Democrats are committed to working on a bipartisan basis to finalize a strong law that will protect America while preserving the civil liberties of all Americans. We reject the proposition that there is a conflict between liberty and security. They can and must co-exist, and we are devoted to achieving this end."

    In a statement Wednesday, 19 Democratic members of the House Judiciary Committee said, "We have concluded 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."

    References

    [1] http://www.politico.com/blogs/thecrypt/0308/House_to_go_into_rare_closed_session.html

    [2] http://www.speaker.gov/blog/?p=1213

    [3] http://www.speaker.gov/legislation?id=0169

    [4] http://www.odni.gov/testimonies/20070918_testimony.pdf

    [5] http://www.nytimes.com/2005/12/16/politics/16program.html

    [6] http://www.bloomberg.com/apps/news?pid=20601087&sid=abIV0cO64zJE&refer=

    [7] http://www.washingtonpost.com/wp-dyn/content/article/2007/10/12/AR2007101202485.html

    [8] http://www.nytimes.com/2008/03/13/washington/13cnd-fisa.html?hp

    [9] http://www.speaker.gov/blog/?p=1158

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