by D. Cupples | Yesterday, the House passed a FISA bill that doesn't contain retroactive immunity for telecom companies that illegally helped the Bush Administration tap Americans' phone calls and emails. This, even after House Republicans' requested a secret session, during which secret information that would persuade the House to pass Telecom Amnesty was supposed to be presented. The Washington Post reports:
"A deeply divided House approved its latest version of terrorist surveillance legislation today, rebuffing President Bush's demand for a bill that would grant telecommunications firms retroactive immunity for cooperation in past warrantless wiretapping and deepening the impasse on a fundamental national security issue....
"But it [the legislation] challenges the Bush administration on a number of fronts, by restoring the power of the federal courts to approve wiretapping warrants, authorizing federal inspectors general to investigate the administration's warrantless surveillance efforts, and establishing a bipartisan commission to examine the activities of intelligence agencies in the wake of the Sept. 11, 2001, attacks.
"Most provocatively, the House legislation offers no legal protections to the telecom companies that participated in warrantless wiretapping and now face about 40 lawsuits alleging they had breached customers' privacy rights.
"Instead of granting them immunity, as the Senate has, the House measure would send the issue to a secure federal court and grant the companies the right to argue their case before a judge with information the administration has deemed to be state secrets." (Washington Post)
By "secure court," I assume that the Washington Post means that the court would hear the evidence in secret.
If so, here's what worries me: what if a judge hearing a big telecom case is a Scalia- or Alito- wannabe, with strong pro-Administration, pro-big business, or anti-ordinary-folks leanings?
The New York Times reports on the bill:
"It would refuse retroactive immunity to the phone companies and would instead provide special authority for the courts to decide whether the companies should be held liable in some 40 lawsuits growing out of an N.S.A. eavesdropping program approved by President Bush after the Sept. 11 attacks.
It would restore certain judicial checks on wiretapping powers while plugging loopholes that the administration has cited in coverage of foreign targets. And it would create a Congressional commission to investigate the past workings of the N.S.A. program."
I haven't read the bill, so it may contain sufficient mechanisms to protect against biased judges. Then again, it likely won't matter, as the Senate probably won't pass the House's new bill.
House Speaker Nanci Pelosi commented:
“Why would the Administration oppose a judicial determination of whether the companies already have immunity? There are at least three explanations:
“First, the President knows that it was the Administration’s incompetence in failing to follow the procedures in statute that prevented immunity from being conveyed – that’s one possibility. They simply didn’t do it right. Second, the Administration’s legal argument that the surveillance requests were lawfully authorized was wrong; or public reports that the surveillance activities undertaken by the companies went far beyond anything about which any Member of Congress was notified, as is required by the law.
“None of these alternatives is attractive but they clearly demonstrate why the Administration’s insistence that Congress provide retroactive immunity has never been about national security or about concerns for the companies; it has always been about protecting the Administration.” (The Gavel)
Memeorandum has commentary.
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