March 3, 2008 8:12 AM

House Democrats Preparing to Back Down on Retroactive Immunity

Democratic House Intelligence Committee Chair Silvestre Reyes, February 14th, in a letter to President Bush:

You have also suggested that Congress must grant retroactive immunity to telecommunications companies. As someone who has been briefed on our most sensitive intelligence programs, I can see no argument why the future security of our country depends on whether past actions of telecommunications companies are immunized.

The issue of telecom liability should be carefully considered based on a full review of the documents that your Administration withheld from Congress for eight months. However, it is an insult to the intelligence of the American people to say that we will be vulnerable unless we grant immunity for actions that happened years ago.

Silvestere Reyes, March 2nd, on Late Edition with Wolf Blitzer (video at Crooks & Liars):

Mr. Reyes did not specify what provisions a House bill might contain. But his use of the words "blanket immunity" suggested that he might be moving toward a Senate bill, backed by Mr. Bush, that would protect phone companies that assisted in a federal program of wiretapping without warrants after the Sept. 11, 2001, terrorist attacks.

"I have an open mind about that," Mr. Reyes said.

"We're very close," he added. "Probably within the next week, we'll be able to move hopefully to bring it to a vote."

Reyes is shifting from a strong position in opposition to retroactive immunity to being willing to include immunity in a deal to get a vote on FISA legislation. It looks that Reyes is moving towards the Senate-passed SSCI bill that includes retroactive immunity in Title II. One would assume that if the House Democrats are caving on retroactive immunity, they would at least get very strong Title I provisions governing congressional oversight of domestic surveillance activities and an exclusivity provision. No information suggesting this sort of deal is forthcoming, though.

In a political environment that fetishes bipartisanship and deal making, it wouldn't be shocking that House Democrats sought compromise legislation that mixed and matched Title I and Title II provisions from the House and Senate bills. While I would not support legislation that traded good oversight for retroactive immunity (or, alternatively, poor oversight for no immunity), at least that brand of Beltway deal-making would produce something worthwhile in return for whatever Democrats are tangibly giving up. The added bonus is that a deal on those terms that produced legislation that included either no immunity or exclusivity, minimization, no basket warrants, would create a scenario where Bush was likely to veto the legislation. But we have no indication that this is what we actually would be getting in the deal described by Reyes and I'm no longer willing to give House Democratic leadership the benefit of the doubt on their ability to produce good legislation from negotiations with Jay Rockefeller and Senate Republicans. My good will went out the window when Reyes appeared on CNN touting a possible deal that includes retroactive immunity, something he'd previously blasted as unnecessary for legislation intended to pertain to our security.

As Glenn Greenwald notes, this is a very bad sign and it makes one wonder why the House Democrats even bothered to get our hopes up that they would stand on political principle, in opposition to the destructive desires of George Bush and Dick Cheney.

We need to put pressure back on the House of Representatives to demand that they oppose retroactive immunity. House Democrats must reject any deal that includes immunity. The House-passed RESTORE Act is a good piece of legislation and there's zero reason for House Democrats to replace any parts of their FISA legislation with the bad Senate bill. Contact your representative in Congress today through CREDO Action and ask them to oppose any legislation that includes retroactive immunity.

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Matt Browner Hamlin helped lead the fight against telecom immunity as part of Senator Chris Dodd's presidential campaign. He has joined the CREDO Mobile team to stop the Bush administration's illegal wiretapping program and hold the telecom companies accountable for their lawbreaking.