House Intelligence Chairman Indicates that House May Capitulate on Telecom Immunity

Civil libertarians are alarmed by Sunday’s interview with the House Intelligence Committee chairman Rep. Silvestre Reyes, suggesting that the House may surrender on the telecom immunity question. For a short period of time, it appeared that for once members of Congress would actually stand on principle and refuse immunity. Now, Reyes is saying that he is open to “compromise” and that a deal may be close.

Reyes comments came in a statement with CNN. He stated that “We are talking to the representatives from the communications companies because if we’re going to give them blanket immunity, we want to know and we want to understand what it is that we’re giving immunity for . . . I have an open mind about that. . . .We think we’re very close, probably within the next week we’ll be able to hopefully bring it to a vote.”

Bush has already allowed the law to expire rather than agree to anything short of immunity for these companies. Thus, any compromise would have to include that component. Many were hoping that this would be off-the-table since there is no public policy justification for wiping out dozens of lawsuits by civil libertarians. Earlier, the White House and GOP rejected an alternative to substitute the government as the liable party if these lawsuits result in victories of civil libertarians. This would seem the perfect illustration of the use of national security to benefit allies of the White House financially. Yet, members would have to stand up to some of the most powerful and well-connected lobbyists in Washington, including many close friends.

A capitulation on this point would destroy a small flickering flame of hope by many citizens that Congress was not entirely in the pocket of lobbyists and could on this one occasion stand firm on a point of legal principle. If the companies and the White House were acting lawfully as they insist, there is nothing to fear from judicial review. If not, it is important to establish that this was an unlawful program.

This is not even a case where civil libertarians are asking anything special from members. All members have to do is stand with our legal system; to allow the courts to be the judge of the illegality of a program. All they have to do is to refuse to join the Executive Branch in blocking the Judicial Branch. Even with our leaders, that would seem a pretty small request of courage — to simply do nothing. However, it is much to demand when friends in the telecom lobby are calling and members see no personal benefit from allowing civil liberties to be addressed in court.

If the House caves, it will confirm that all of this back and forth is merely political theater for voters to believe that someone actually gives a hoot about civil liberties. The Senate did the same thing. When voters rioted over immunity in 2007, they delayed the vote in the hope that people would forget out it. They claimed a great victory for civil liberties in the delay when the fix was in for a vote in 2008. Now, the House seems to be testing the waters to see if it can get away with the same tactic. It is like a game of three card Monty with our liberties. Voters have to guess where members have put their rights at any given time until they finally walk away in frustration.

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20 thoughts on “House Intelligence Chairman Indicates that House May Capitulate on Telecom Immunity”

  1. This is because to start with politics was not such a lucrative business as it is now! Let me start with the very beginning of the declaration of independence.

    “We hold these truths to be self-evident, that all men are created equal,

    that they are endowed by their Creator with certain unalienable Rights,

    that among these are Life, Liberty and the pursuit of Happiness.”

    (Yet people use these original documents to take their creator out of everything!)( hopefully you know it’s my words in Parenthesis)

    “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, “(from the consent..we must consent..we gave up our consent)

    “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. “
    (Please read the full declaration and see if it does nor remind you of every politician currently in office when they refer to the king.
    Politicians should be here to serve us not get rich. The job pays entirely too much. If it paid less the people applying might actually care about us instead of satisfying big money. On that note I can’t believe anyone is actually surprised that Obama is going against his campaign promises”let me be clear on this.” He was craw fishing before he ever even made it to office. He like every other big player in politics said whatever we wanted to hear to get the big check. And they will keep doing so as long as we let them.”

  2. Meanwhile the civil contempt case has been docketed to Judge John D Bates of Walker v Cheney fame…so that’s not a great outcome.

    I have now read the filing thoroughly and am a little more optimistic than I was.

    They saw things as I did and make a good case for the judge to enjoin Miers to appear before the committee. Of course once she does it will be all privilege claims.

    They make a good argument for standing, which we know is something Judge Bates held against the GAO in Walker.

    They are a little shakier at the intersection of their oversight role and Article I power to investigate in order to legislate and the inner deliberations of the Executive…this is where their argument seems the weakest.
    I don’t think this judge is going to be sympathetic, but I have been wrong before…

  3. Patty C! Arabella! Mark!

    Break out your whooooohooos!

    By a good size vote (straight party line as always except for 5 defections) the House this afternoon came out with bill that DOES NOT HAVE RETROACTIVE TELECOM IMMUNITY and actually has a number of very solid rights-protecting features! This is a Very Good Thing! Pelosi is on an absolute tear..on this and several other ongoing issues. Reyes who is a solid democrat and one who has a long memory proved strong in the end and the dreaded “deal” never eventuated!

    Several points.

    One the fear/terrorism/9-11 bloody shirt is beginning to bleach out a bit from being waved too much.

    Two the PAA is going away, for good. Next, the MCA. We are going to get our country back, bitter fight by bitter fight, against their once intimidating, now pathetic lockstep majorities.

    Three: the media played no part in the activation of the voters pressure on the Dems. The blogs did. The Edward R Murrows are now on the internet.

  4. Dunno, but here are few interested AG’s that I do know of.

    Foreign Intelligence Surveillance Act




    Wednesday, October 31, 2007

    Washington, D.C.

    Chairman Leahy, Ranking Member Specter, and members of the Committee: Thank you for this opportunity to address you today on the proposed Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2007. In sum, we have grave concerns about the sweeping immunity from state investigations the Act would provide to electronic communications service providers (ECSPs) and others. We are particularly troubled by Section 204 of the Act (adding FISA § 803), which purports to preempt the well-established police powers of the states to regulate utilities doing business within their borders and safeguard the privacy and confidential information of their citizens. We urge you to remove Section 204 and preserve the appropriate balance of federal and state authority underlying our federalist system.

    As the Committee is no doubt aware, we are presently representing our states in multidistrict litigation pending before the Honorable Vaughn R. Walker, Chief Judge of the Northern District of California, entitled In re National Security Agency Telecommunications Records Litigation, MDL Docket No. 06-1791 VRW.[1] The course of this litigation to date provides an object lesson on why the proposed preemption provision is inappropriate and unnecessary. Judge Walker’s handling of the case demonstrates the wisdom of allowing the judiciary to continue to fulfill its role of policing the delicate balance between state and federal power and of weighing the competing policy concerns raised by the need for utilities regulation and consumer protection on the one hand and federal law enforcement and intelligence gathering on the other. To illustrate this point, we briefly summarize the litigation below.

    Following citizen inquiries concerning possible unlawful disclosures of confidential telephone calling data, regulators in each state initiated administrative proceedings (and in Missouri a case was filed in state court) to determine whether local telecommunications companies had violated state law. In response, the federal government filed actions in federal district court seeking declaratory and injunctive relief aimed at halting the state proceedings. Ultimately, these cases were consolidated for adjudication before Chief Judge Walker.

    The government argued that federal law preempted the state proceedings because the states were invading areas of exclusive federal control and hindering the government’s national security and intelligence gathering functions. In fact, the subjects of the investigations are utilities over which each state has plenary jurisdiction. Moreover, the purpose of each state investigation is to ascertain whether any carrier has violated state law by making unauthorized disclosures, without regard to the identity of the ultimate recipient of the disclosure. And the investigations do not seek details of any intelligence activity conducted by the federal government.

    Judge Walker rejected the federal government’s preemption arguments, holding that “Congress did not intend to foreclose state involvement in the area of surveillance regulation” and that “the investigations do not require an act by the carriers that federal law or policy deems unlawful. Nor do the investigations pose an obstacle to the purposes and objectives of Congress.” In re Nat’l Sec. Agency Telecomms. Records Litig., 2007 WL 2127345, *12, *15 (N.D. Cal. July 24, 2007) (slip copy). The court recognized that the states’ authority to regulate telecommunications companies’ compliance with state law could not be foreclosed because a company might have assisted an intelligence gathering operation. Indeed, to rule otherwise would eviscerate the states’ longstanding police power over consumer protection (including privacy) and utilities regulation. See New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 365 (1989) (“[T]he regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States.”); Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 150 (1973).

    In addition to preemption, the federal government argued that the state secrets privilege precluded the states’ inquiries, although this privilege has never been formally asserted by the federal government in any of the state officials’ cases. Judge Walker declined to rule on how the state secrets privilege would impact the state proceedings until the Ninth Circuit Court of Appeals renders its decision in an appeal from the court’s decision in Hepting v. AT&T, 439 F. Supp. 2d 974 (N.D. Cal. 2006) (Walker, C.J.), concerning the applicability of the privilege in suits filed by individuals against telecommunications companies.[2] More specifically, the court observed that at least “some questions posed in these investigations fall outside the privilege’s scope, a point the government conceded at oral argument,” while noting that the states acknowledged that “some of the information sought . . . may implicate the state secrets privilege.” In re Nat’l Sec. Agency Telecomms. Records Litig., 2007 WL 2127345 at *18. Accordingly, the court deferred on deciding “whether and to what extent the state investigations may proceed,” id., pending further guidance from the Ninth Circuit.

    As the litigation illustrates, the court system, armed with protective doctrines like the state secrets privilege, is well-equipped to balance, on a case-by-case basis, society’s interest in ferreting out and addressing illegal disclosures of confidential information with its interest in shielding legitimate, necessary disclosures and safeguarding state secrets.[3] Indeed, in assessing an assertion of the state secrets privilege, courts can conduct ex parte, in camera review of sensitive information. And a review of the pertinent caselaw reveals that the courts have successfully avoided information leaks in cases in which they considered state secrets privilege claims.

    By contrast, proposed § 803 is an unnecessarily blunt instrument. To begin with, the proposed preemption provision (FISA § 803) wrongly assumes that it would be harmful to the public interest to disclose any information whatsoever relating to an ECSP’s provision of assistance to an element of the intelligence community. Judge Walker rightly rejected this overreaching assertion. While the extent of appropriate disclosures (for example, the identity of affected individuals and details of the assistance rendered) may be subject to debate, there is no support for the complete preclusion of any disclosure whatsoever. Society benefits in numerous ways from the transparency promoted by the states’ investigative powers. Those powers should not be limited without the most compelling justification, and none can be advanced on behalf of § 803.

    Moreover, the operative language employed in proposed § 803 is vague and invites self-serving and unverifiable assertions by ECSPs. Specifically, subsections (1), (2), and (4) are triggered by investigations touching on an ECSP’s “alleged assistance to an element of the intelligence community.” (Emphasis added.) The nonspecific use of the adjective “alleged” to qualify the term “assistance” raises a question as to whether an entity under investigation could scuttle the inquiry at its discretion, merely by alleging that its response would call for disclosure of its “assistance.” The provision required no showing by an ECSP or by the Attorney General. In short, the vagueness of the provision invites overbroad or unsubstantiated assertions and would almost certainly result in litigation over its meaning and scope.

    Finally, no justification exists for providing less protections for state investigations than are provided to private plaintiffs under the proposed provisions of the Act. The proposed preemption provision appears to set a lower threshold for derailing the exercise of the states’ traditional police powers than is required to invoke immunity against a private lawsuit. The immunity provisions (FISA §§ 703(h)(3), 802; FISA Amendments Act § 202) require the filing of a certification from the Attorney General or the Director of National Intelligence in the litigation and provide for judicial review of certifications. The states’ interests in the exercise of their sovereign powers are certainly no less compelling than a private plaintiff’s. In fact, they are arguably greater and grounded in fundamental principles of constitutional law. In addition, under current law the federal government can proceed in federal court if it concludes that a state investigation implicates state secrets. Thus, the proposed preemption provision is not only antithetical to our constitutional allocation of state and federal power, but also unnecessary.

    In sum, the courts are in the best position to strike an appropriate balance between the state and federal interests and have shown that they are sensitive to both. The proposed preemption provision should be deleted in its entirety.

    Very truly yours,

    William H. Sorrell
    Attorney General
    State of Vermont

    Richard Blumenthal
    Attorney General
    State of Connecticut

    G. Steven Rowe
    Attorney General
    State of Maine

    Anne Milgram
    Attorney General
    State of New Jersey

    Robert M. Clayton, III
    Missouri Public Service Commission

    [1] Similar proceedings commenced in Missouri and were also consolidated into the multidistrict litigation.

    Attorneys from the Missouri Public Service Commission are litigating those matters on behalf of.

    Commissioner Clayton.

    [2] The Ninth Circuit heard argument in Hepting on August 15, 2007.

    [3] For example, some of the initial information requests by the state regulators asked the carriers whether

    they had shared confidential information with the NSA. The court is now poised to assess whether and, if

    so, to what extent such requests violate the state secrets privilege. The court could also provide guidance

    on how such requests could be reformulated to pass muster.

  5. “There are several State Attorneys General who have demonstrated they
    are not only not afraid, but eager, to take on this administration, ‘Thingum Bob’”

    I’d be eager to find out what State Attorney Generals have made any overtures towards prosecuting Bush–especially on the Wiretapping/4th Amendment issue.

    “How many have YOU contacted and/or persuaded?”

    That’s a fair question.

    I’ve gotten as far as N.Y.C.P.L.R. Article 78 and weighing the possibilities of getting a writ of mandamus compelling the NYS A.G. to uphold the New York State Constitution.

    However, as Professor Turley will tell you, writs of mandamus against prosecutors (i.e. precluding the issue of prosecutorial discretion) are extremely rare–thus the reason for framing the issue as I did above.

    While I can find no case law on the subject, the (somewhat ontological) argument briefly stated is this: Just as the Executive under the U.S. Constitution may not overrule/overpower the document to which it owes its existence, so to must the NYS A.G. obey and carry out the mandates of the New York State Constitution.

    I say it’s a somewhat ontological argument since in terms of specifically enumerated powers the Constitutions exist as “that than which nothing greater can be conceived.”



  6. jonathanturley 1, March 3, 2008 at 12:10 pm

    To paraphrase a recent commercial, when that phone rings at the White House at 3 am, it is usually a lobbyist.

    “Is this the Party to whom I am speaking?”

    🙂 I can’t help it…

  7. How DO you do it!?! You are the best of us! 🙂

    Reading back, that was a great thread!

  8. There are several State Attorneys General who have demonstrated they
    are not only not afraid, but eager, to take on this administration, ‘Thingum Bob’

    How many have YOU contacted and/or persuaded?

    Hey, I had to ask…

  9. Once again; who’s giving the president immunity?

    “The President’s political authority is controlled by the impeachment decision while the President’s individual accountability is controlled by STATE and federal law.

    The accountability of all federal officers as citizens to the criminal laws is the unifying theme of our system. This point was made most eloquently in 1882 in United States v. Lee:

    ‘No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.’

    ‘It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy. . . . ‘” (”From Pillar to Post”: The Prosecution of American Presidents, 37 Am. Crim. L. Rev. 1049 (2000).

    And not for nothing, but since when has any branch of the Federal Government been specifically empowered to (effectively amend &) lower the FLOOR of rights protected by the Fed Constitution and thence lower the CEILING of rights set by a state constitution?

    New York State Constitution, Article I, Section 12

    “The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.”

    Sure many people (& suckups in congress) think the President doesn’t ‘deserve’ to be prosecuted; that he’s ‘building a house.’

    But the New York State Constitution says “Deserve’s got nothin’ to do with it.”



  10. Simply brilliant essay from JT.

    And action by Patty C and Arabella (and yes, DW as well)

    I have had no great faith in Reyes’ commitment to stopping the administration’s agenda (Patty C probably knows where I expressed my sad doubts). But I know this, if JT had a national soapbox like the ranters of the right, like the pundits with daily programs, then things would be far different.

    All that is needed is to shine a bright light on the lobbyist-government culture and to keep shining it. Things would change or so I hope, because we still retain our ability to vote players in that game out of office.

    Imagine a dark shore on which various sea life scuttle and carry on their commerce. Ever and anon a beam from a nearby lighthouse sweeps the beach and the creatures scuttle for shelter, but then all is dark again and out they come and re-commence their trade.

    Such is our politics, the illumination is sporadic and fitful and the public outrage is never sustained enough to effectuate substantial change on that dusky shore where civil liberties are traded away for commercial gains.

    (To knowledgeable readers, yes, I borrowed the cadence but not the imagery or metaphor from Disraeli’s famous “sleeping volcanoes” speech.)

  11. I’ve been telling my Congressman’s (Jim Moran (D-VA)) staff for the last week that amnesty for the telcoms is wrong, that it’s condoning crminal behavior, regardless of what the DOJ may say.
    Perhaps we should be touting that “immunity equals amnesty”! Seems that the latter word has a bad rep in DC.

  12. To paraphrase a recent commercial, when that phone rings at the White House at 3 am, it is usually a lobbyist.

  13. Patty C and I are calling and emailing our Reps, meanwhile
    Reyes says “We are talking to the representatives from the communications companies….”

    So the telecoms are in the room and we’re just bothering the staff who answer the phones….

    I thought it was “the peoples’ House”!!!

    Grrrr. Grrrr. Grrrr.

  14. Full of good news this AM, huh JT? I’ve already emailed my Rep.
    – on the first two posts.

    “I have a phone, and I’m not afraid to use it” is my mantra these days.


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