This e-mail from the chair of the House Intelligence Committee came just a few minutes ago. I had e-mailed the Congressman urging the House to continue to oppose retroactive immunity for telecommunications companies.
I haven't had time to do much critical thinking about this. I didn't watch Mr. Reyes on Sunday morning television the weekend before last, when he apparently sounded as if he were floating a trial balloon for another Democratic capitulation, so I won't be in a good position to judge if what he said then is consistent with what he writes now. I'll post this, with apologies for the scanty analysis portion of the diary, partly because many of us who read Daily Kos aren't on his e-mailing list.
March 18, 2008
Dear [david78209]:
Thank you for giving me this opportunity to clarify my views on the issue of the Foreign Intelligence Surveillance Act (FISA) and, in particular, the issue of liability protection for telecommunications companies. I appreciate knowing your thoughts on this issue, and applaud you for taking an interest in your government.
As the co-author and original co-sponsor of the RESTORE Act (HR 3773), I have led the fight in Congress to prevent this Administration from violating the Constitutional rights of Americans through warrantless surveillance. That bill passed in November with overwhelming Democratic support and support from the civil liberties community.
I have also led the only in-depth review of all aspects of the President’s warrantless surveillance program in the House of Representatives. In May 2007, I insisted that the Administration provide Congress with all of the documents and legal opinions authorizing the Program. After fighting to secure this material, the Administration finally capitulated in January 2008 - nearly 8 months after I first made the request. Since receiving the documentation, the House Permanent Select Committee on Intelligence, which I chair, has been studying the material and following up on our previous oversight efforts to fully understand the nature and scope of the President’s warrantless spying.
Last August, I voted against the Administration’s bill, the Protect America Act. In February, I insisted that Congress stand firm and not simply rubber-stamp the Senate FISA bill, despite over-heated rhetoric from the President that doing so would somehow endanger the country. We knew better, and we called out the President on his false statements.
Here is the letter I wrote to the President, http://wwwc.house.gov/... , in which I told the President that "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."
Also, I ask you to read my op-ed in the Washington Post, http://www.washingtonpost.com/... , in which the four chairmen of the Congressional Intelligence and Judiciary Committees, wrote: "We are united in our determination to produce responsible legislation that will protect America and protect our Constitution."
On the issue of liability protection for telecommunications companies, let me be clear: Congress should not grant, and I will not support, retroactive immunity for any company that knowingly violated the law.
The law of immunity works like this: All private sector entities and private citizens are entitled to immunity from suit if they assist the government pursuant to appropriate legal process. To take a concrete example, if a telephone company is given a warrant from a judge to tap the phone of a drug dealer, the drug dealer should not be able to sue the phone company for violating his rights. That suit should be dismissed.
Under privacy laws and under FISA itself, a company is immune from suit if it receives a court order or a lawful certification from the Attorney General that a warrant is not required.
So the issue isn’t whether someone is "for" or "against" telecom immunity. We are all "for" telecom immunity if the compliance is consistent with the law. That is why every Democratic bill - including the RESTORE Act - contains a provision for prospective liability protection for companies that comply with the law.
The issue is how to craft legislation that only protects companies that acted lawfully. I am proud to say that we have done this, and H.R. 3773, the FISA Amendments Act of 2008, was successfully passed in the House of Representatives on March 14, 2008.
This bill arms our intelligence community with powerful new tools to track and identify terrorist targets outside the United States. At the same time, it restores essential constitutional protections for Americans that were sharply eroded when the President signed into law the Protect America Act last August.
H.R. 3773 puts the security of Americans first and foremost, with close attention to their constitutional rights. The bill also includes provisions to allow companies that acted lawfully to make that argument to the courts. If they did nothing wrong, as they claim, then they will be immune from legal action.
Title I of this bill ensures that the government does not need to get an individualized warrant when it targets communications of targets overseas. This is the central problem the Administration cited with FISA in August, and this bill would fix it.
Let me be clear, this bill does not require individual warrants for foreign terrorists before surveillance can begin.
H.R. 3773 does require the FISA Court to ensure that the procedures that the government uses to identify foreign targets are designed to protect the rights of Americans. This independent, front-end review is necessary to ensure that the rights of Americans are being properly protected before any violations occur. However, the bill also provides a generous emergency provision – at least 30 days – so that surveillance can begin in an emergency, before the government has to go get approval from the court.
In Title II, H.R. 3773 addresses the issue of the lawsuits filed against the telecom companies who allegedly participated in the President’s warrantless surveillance program. This bill allows the courts to carefully safeguard classified information – under well established protocols – that the companies may wish to use to defend their actions. This will allow the companies to defend themselves. If they are innocent, they will face no damage. If they broke the law, they will be held to account. But this issue will be decided by a court.
Title III of this bill establishes a bipartisan national commission to investigate warrantless wiretapping. I believe that the nation is deeply concerned about what has gone on for the last seven years, and I want to restore some of the trust in the intelligence community. Title III is designed to do just that – by bringing these things into the light in a careful and bipartisan way. The American people deserve to know the truth about what has happened.
Please contact me or my staff if I can be of further assistance. Also, please visit my website, www.house.gov/reyes, to sign up for my email newsletter, learn about my recent activities, and obtain information on federal programs.
Sincerely,
Silvestre Reyes
Member of Congress
SR/jm
I might quibble over the meaning of "immunity". To me it has meant that the telecoms wouldn't have to give any reason for turning over records to the government. Mr. Reyes suggests, I think, that "immunity" means the telecoms are OK if they have a good excuse. I'd call that something else, perhaps "non-culpability".