House holds secret session to debate FISA telco immunity

The US House of Representatives passed its new version, largely sponsored by majority Democrats, of the FISA Amendments bill. For more on this afternoon's passage, click here.

11:42 am EDT March 14, 2008 - In an extremely rare closed-door session last night, the US House of Representatives debated whether to go ahead and approve a foreign intelligence bill that would grant prosecutorial immunity to telecom companies, or to advance another version without it.

Early this week, it appeared all but certain that the House would approve the Senate's take on amendments to the Foreign Intelligence Surveillance Act that would ostensibly restrict the government's ability to spy on citizens, while also granting immunity to telecom companies from being prosecuted for turning over personal information to the government during surveillance operations.

But appearances can deceive, especially inside the beltway. As it turned out, on Tuesday, the House advanced a new version of the bill apparently similar to what it had passed earlier, but subtracting the telco immunity provisions added by a Senate amendment.

Rep. John Conyers (D - Mich.) was one of those supporting the new, immunity-less version, proclaiming in a press conference that on the immunity subject, "We are not going to cave in."

Yesterday, after President Bush appeared on the White House South Lawn to declare the House's maneuver partisan and against the interests of anti-terrorism, the House agreed to meet in a rare secret session, with the galleries cleared of spectators and the doors locked shut, to debate the merits of the Senate-amended version of the bill in a secure venue, safe from possible leaks of national security secrets.

And this morning, it appears that not much actually changed after the meeting was held. Democratic Majority Leader Steny Hoyer (Md.) gave a statement late yesterday essentially saying that the vote on the new bill originally scheduled for yesterday but postponed by the secret meeting, will be held today after all.

"I did not hear any new information tonight that dissuades me from my very strong belief," Rep. Hoyer said last night, "that the FISA bill House Democrats have produced -- and which the House will vote on tomorrow -- is a reasonable, thoughtful, appropriate piece of legislation that will ensure that the intelligence community has all the tools it needs to protect our nation, while also respecting the Constitutional protections that Americans rightfully feel are so important. Tomorrow, I will urge members on both sides of the aisle to vote for this legislation."

President Bush is already on record as condemning the bill for, in his view, destroying the bonds of cooperation between public and private interests on national security matters.

"The House bill fails to provide liability protection to companies believed to have assisted in protecting our nation after the 9/11 attacks," the President stated yesterday afternoon. "Instead, the House bill would make matters even worse by allowing litigation to continue for years. In fact, House leaders simply adopted the position that class action trial lawyers are taking in the multi-billion-dollar lawsuits they have filed.

"This litigation would undermine the private sector's willingness to cooperate with the intelligence community, cooperation that is absolutely essential to protecting our country from harm," Mr. Bush continued. "This litigation would require the disclosure of state secrets that could lead to the public release of highly classified information that our enemies could use against us. And this litigation would be unfair, because any companies that assisted us after 9/11 were assured by our government that their cooperation was legal and necessary."

But the President went one step further, condemning the new House legislation for a provision the existing bipartisan version already contained, and which the President might have signed into law anyway had this debate not cropped back up: It's the bill's key provision, which would enable the Justice and Homeland Security departments to conduct electronic surveillance on "non-United States persons" without first obtaining court warrants, only in limited circumstances. Surveillance could be launched, and then the departments would have to provide information in a very timely fashion to a FISA court, which would settle the matter of what they could do with the information later.

Mr. Bush called this provision yesterday "a cumbersome court approval process that would make it harder to collect intelligence on foreign terrorists." Thus it appears the whole debate on telco immunity, regardless of its outcome, may have endangered the success of any foreign intelligence surveillance legislation to emerge from the House.