I’ve been genuinely impressed. The Democrats’ House leadership, which has been known to cave to White House demands when it comes to national security issues on occasion, allowed the poorly-named “Protect America Act” to expire, despite the hysterics from Bush and congressional Republicans. It seemed like only a matter of time before Dems backed down under the pressure, especially when conservative groups started running fear-based television ads on the issue.
A little over a week ago, House Intelligence Committee Chairman Silvestre Reyes appeared on CNN and signaled retreat. Pressed by Wolf Blitzer, Reyes wouldn’t criticize the Bush-backed Senate bill, and expressed his support for full “blanket immunity” for telecommunications companies that cooperated with Bush’s warrantless search program. It appeared as if the inevitable Democratic concessions had begun.
But there might be more fight in these guys than I gave them credit for.
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.
The Democrats’ proposal would fall far short of what the White House has been seeking.
That’s something of an understatement. As it turns out, the Dems’ latest proposal — Republicans refuse to actually sit down with Dems to negotiate on the legislation — is likely to incense the White House even more.
Most of the provisions are about what you’d expect — tougher restrictions on the NSA, create a bipartisan congressional commission with subpoena power to issue a report on the surveillance programs — but it’s the telecom provision that’s really important here. As Glenn Greenwald put it, instead of retroactive immunity, the Dems’ proposal “would allow telecoms to submit any classified information to the court to demonstrate that they did not break the law.”
The NYT explained:
House Democratic officials say they like elements of the idea because it would allow the courts to decide the issue and answer the concerns of the phone carriers, who say they have been muzzled in defending themselves by the government’s efforts to invoke the “state secrets” privilege on the lawsuits.
“This approach allows the cases to go forward, but it also allows the companies to be unshackled to put on their cases,” said one House Democratic staff member who has been involved in the negotiations but received anonymity because he was not authorized to speak publicly.
Paul Kiel added:
So the judges would not simply be looking at the classified documents authorizing the warrantless wiretapping and then make a ruling as to whether it was kosher. The plaintiffs would make their arguments based as to the program’s legality based on the judge’s unclassified representations of the program.
It is a solution that the groups suing the telecoms will likely be happy with (and we’ll get you their reaction as soon as we have it). An appeals court is currently weighing whether the government can protect details of the warrantless wiretapping program under the state secrets privilege.
Republicans are likely to balk, the president is likely to scream, and even a few Senate Dems may not like the idea.
But I still appreciate the fact that the House Democratic leadership is hanging tough and taking constructive steps without caving.