House may reject Senate save-in on telecom immunity


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.

President Bush has been insisting for months that Congress give retroactive immunity to the phone companies, calling it a vital matter of national security. The Senate gave him what he wanted in a vote last month that also broadened the government’s eavesdropping powers.

But House Democratic leaders have balked at the idea.

When the White House would not agree allow more time for negotiations, House leaders last month let expire a temporary six-month surveillance measure. The White House says the Democrats’ inaction has imperiled national security. Democrats have accused Mr. Bush of fear-mongering.

The flash point in the debate has been the question of whether to protect AT&T and other major phone companies from some 40 lawsuits pending in federal courts, which charge that the companies’ participation in the eavesdropping program violated federal privacy laws and their responsibilities to their customers.

Mr. Bush says the companies acted out of patriotism in responding to what they believed was a lawful presidential order. He has said that the lawsuits are being pursued by money-driven class-action lawyers and that they should not be allowed to threaten the financial solvency of the phone companies.

The Bush administration has shown no sign of backing down, with Kenneth L. Wainstein, the assistant attorney general for national security at the Justice Department, laying out its position most recently in an interview broadcast on Sunday on C-Span’s “Newsmakers” program. Mr. Wainstein said the phone companies had “received assurances from the government, the highest levels, that this was a lawful program and that it was authorized by the president and was necessary for our national security.”

But House Democratic leaders appear ready to give the White House a fight on national security, an issue over which they once largely conceded the field to Mr. Bush.

The tentative proposal worked out by House Democratic leaders, officials said, has three main elements.

It would impose tougher restrictions on National Security Agency eavesdropping than the Senate version does by requiring court approval before the agency’s wiretapping procedures, instead of approval after the fact. It would also reject retroactive immunity for the phone carriers.

The proposal would also create a bipartisan Congressional commission with subpoena power to issue a report on the surveillance programs, including the one approved by Mr. Bush to monitor some Americans’ international communications without warrants.

The commission would seek to find out how the program was actually run. Some Democrats complain that even now, more than two years after the program was first publicly disclosed, many questions about its operations remain unanswered.

The idea of giving federal courts specific jurisdiction to determine the immunity issue is somewhat similar to a proposal made in the Senate by Senator Dianne Feinstein, Democrat of California. That was soundly defeated by a vote of 57 to 41.

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.

Under the proposal, the courts would be given authority to hear classified evidence in the civil suits — perhaps on an “ex parte” basis, with only one side in attendance — to determine whether the companies are immune from liability. Officials said the proposal would most likely give that authority to a federal district court, but it is possible that the Foreign Intelligence Surveillance Court in Washington could be given that authority instead.

With some conservative Democrats in the House favoring immunity for the phone companies, Democratic leaders conceded that the proposal would face opposition even within their own party. And they said that even if it were approved by the House, it was certain to face strong opposition from the White House and probable defeat in the Senate.

“This is not the end of the road,” the House Democratic staff member acknowledged. “We’re trying to build support for the provision.”

article originally published at

The media's job is to interest the public in the public interest. -John Dewey