Posted on 03/11/2008 3:36:05 PM PDT by Ernest_at_the_Beach
WASHINGTON (AP) Locked in a standoff with the White House, House Democrats on Tuesday maintained their refusal to shield from civil lawsuits telecommunications companies that helped the government eavesdrop on their customers without a secret court's permission.
But they offered the companies an olive branch: the chance to use classified government documents to defend themselves in court.
House Democratic leaders unveiled a bill that they hoped would bridge the gap between the electronic surveillance bill passed by the Senate last month and a rival version the House approved last fall.
The House bill also would create a bipartisan commission, modeled after the 9/11 Commission, to investigate the Bush administration's secret wiretapping program.
The legislation drew swift criticism from congressional Republicans and from Attorney General Michael Mukasey and National Intelligence Director Mike McConnell, who said it fails to fix problems with the 30-year-old Foreign Intelligence Surveillance Act that Congress is trying to update. They also said any bill that does not provide telecom immunity is unacceptable to the Bush administration.
White House Press Secretary Dana Perino said the bill would impose "cumbersome" requirements on the intelligence agencies to conduct wiretaps. She also said the proposed investigative commission shows "House leaders are more interested in playing politics" than they are in preventing terrorist attacks.
House Democrats point out that Congress still does not know what the telecommunications companies did that requires legal immunity because the White House has only allowed Judiciary and Intelligence committee members to read the secret documents that underpin the program.
The 1978 FISA law dictates when the government needs court permission to conduct electronic eavesdropping inside the United States. The law has taken on particular importance in the global effort to thwart terrorists since the 2001 attacks on the United States.
The most contentious difference between the two bills is whether they grant legal immunity to telecommunications companies that helped the government wiretap phone and computer lines after the Sept. 11 terrorist attacks without first getting approval from the FISA court. Congress created that court 30 years ago to prevent government abuse of its surveillance powers.
The Senate bill would provide full immunity to the telecommunications companies. The House bill includes no such provision.
The compromise proposed Tuesday by House Democratic leaders is expected to be brought to the floor for a vote Thursday. It would allow the roughly 40 lawsuits that are pending against the companies for their participation in the secret wiretapping program to go forward.
"We are not going to cave in" on immunity, said House Judiciary Committee Chairman John Conyers, D-Mich.
The companies are hamstrung from defending themselves in court, however. The Bush administration is invoking the "state secrets" privilege to block the companies from revealing secret documents that might bolster their argument that the eavesdropping program was legal.
The House compromise bill would encourage the federal district judge hearing the telecommunications lawsuits to review those classified documents in secret to determine whether the companies acted legally.
Judges in criminal cases often hear classified evidence in secret, but judges in civil cases do not, said House Majority Leader Steny Hoyer, D-Md.
President Bush has vowed to veto any bill that does not grant the companies full retroactive immunity from lawsuits.
Democratic leaders say they are trying to strike a balance between protecting the country against terrorist attacks and protecting civil liberties.
Trial lawyer donations or America’s security. Dems always go against America’s security.
“To have the companies sued for cooperating with a government security program is a nasty little bit of backhanded democrat treason.”
Yup.
What if the telecom companies provided assistance, but the assistance was NOT in accordance with any law passed by Congress, but instead was against a duly-passed federal law?
That's the legal/factual posture created by the combination of the Terrorist Surveillance Program, as described by the administration, and the federal surveillance statutes at 50 USC 1801 et seq / 18 USC 2511.
Now, as a practical matter, the issue is considerably more complex than just that. For one thing, an aggrieved party (as described in 50 USC 1810, the section of law that give plaintiffs a right to sue the government) would have to make a showing he or she was in fact surveilled. I think this hurdle cuts off virtually all suits.
If that doesn't cut off a suit, the government can assert state secret. It did so successfully with the al Haramin case, where the plaintiff had mistakenly been given evidence that it had in fact been surveilled. The plaintiff was denied use of this evidence by a decision of the Ninth Circuit (al Haramin case).
Finally, as a matter of general principle, it's possible (IMO), for a president to conduct an individual surveillance that is outside of statutory boundaries, but inside constitutional boundaries. Clinton did so with a warrantless physical invasion of Aldrich Ames' house, for the purpose of setting bugs.
Whether or not the specific actions undertaken by the TSP (which are in contravention to US federal statute) are constitutional can't be analyzed without resort to facts, and those facts aren't (and likely won't be) made public.
Rather than analyze all the reasons why a suit would probably fail, how about we pass the immunity, get the surveillance, and save the legal analysis for elsewhere.
“...a nasty little bit of backhanded democrat treason”
Yes it is and notice how their olive branch will encourage even more leaks as they would allow God alone knows who to have a look at classified documents. I hate those people.
If Congress wants to provide a surveillance environment free from the risk of civil suits, it should repeal the laws that enable those suits. No such repeal has been suggested by either the administration or the Republicans in Congress. Yet civil suits relating to surveillance ALL have the risk of disclosing government secrets. So why have a statute that give a right to sue?
But what prompted me to post at all was your comment:
The telecom companies did nothing more than provide assistance in accordance with a law passed by Congress.
I wonder if your conclusion would change if that assertion was false. I happen to believe that it is a false assertion, but I certain have no interest in disabusing you of holding otherwise. Still, I don't think it's an unfair "hypothetical" to those who believe that 100% of the government's surveillance has been conducted in accordance with a law passed by Congress.
If the telecom companies broke a law passed by Congress, do you still think it's appropriate to "pass the immunity and save the legal analysis for elsewhere?"
Locked in a standoff with the White House, House Democrats on Tuesday maintained their refusal to shield from civil lawsuits telecommunications companies that helped the government eavesdrop on their customers without a secret court's permission. But they offered the companies an olive branch: the chance to use classified government documents to defend themselves in court... The House bill also would create a bipartisan commission, modeled after the 9/11 Commission, to investigate the Bush administration's secret wiretapping program. The legislation drew swift criticism from congressional Republicans and from Attorney General Michael Mukasey and National Intelligence Director Mike McConnell, who said it fails to fix problems with the 30-year-old Foreign Intelligence Surveillance Act that Congress is trying to update. They also said any bill that does not provide telecom immunity is unacceptable to the Bush administration.
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