By Ellen Nakashima
Washington Post Staff Writer
Wednesday, March 12, 2008
House Democratic leaders announced yesterday their support for providing some relief to phone companies that have been sued for assisting the Bush administration's warrantless surveillance program but reaffirmed their opposition to the legal immunity sought by the administration. The proposal would allow the companies, which face nearly 40 civil lawsuits in a federal court in San Francisco, to defend themselves in secret, in front of a judge but without the plaintiffs. Leaders intend to organize a floor vote on it tomorrow.
Allowing such "ex parte" review of classified evidence is meant to defuse the administration's argument that the companies cannot respond to the lawsuits now without disclosing classified information that would harm national security, and that the companies should, therefore, be immunized.
The decision not to budge on the immunity issue reflects an apparent calculation by the Democrats that they can continue to defy the White House on a security concern in an election year.
"The Democrats always risk getting beaten up," said House Majority Leader Steny H. Hoyer (D-Md.) at a news briefing yesterday. "But . . . our citizens expect us to protect their private records while at the same time expecting us to facilitate the work of the intelligence community. I think that's what we've done."
"We are not going to cave in to a retroactive immunity situation," Judiciary Committee Chairman John Conyers Jr. (D-Mich.) said. Democratic leaders said that they think they could pass the bill with support from the moderate-to-conservative Blue Dog Democrats. "I'm feeling very confident," Majority Whip James E. Clyburn (S.C.) said.
The measure is part of a revised House bill that would update the 1978 Foreign Intelligence Surveillance Act. The administration contends that the act has been overtaken by technological advances and, especially in the case of e-mails, requires new provisions to allow intelligence agents to eavesdrop on communications involving foreign targets.
White House press secretary Dana Perino said the House Democrats' bill is "dead on arrival" for several reasons, including its failure to provide the liability protection that is in the Senate bill. "It is clear that House Democratic leaders have once again bowed to the demands of class-action trial lawyers, MoveOn.org, and Code Pink and put their ideological interests ahead of the national interest," Perino said in a statement. She criticized the provision calling for the creation of a bipartisan commission to examine the administration's warrantless surveillance activities. "We can only draw one conclusion from this -- House leaders are more interested in playing politics with past efforts to protect the country than they are in preventing terrorist attacks in the future."
The House yesterday defeated a Republican motion to approve the Senate-passed alternative, which the White House supports, making the existence of a standoff clear.
Privacy advocate Kevin Bankston, a senior staff lawyer at the Electronic Frontier Foundation, said that having a secret court review is the only true compromise. "It allows the plaintiffs to have their day in court," he said. "It allows phone companies to put up their defense. It allows the process to proceed fairly and securely." But lawyer Michael Sussmann, a partner at Perkins Coie in Washington who represents communications providers, said the proposal "still exposes carriers to huge losses" and does not address their concerns about protracted litigation.
Conyers said the bill is not a product of a conference committee but an effort "to try to push this difficult ball down the road a little further." A Democratic aide described it as a move to take "the state-secrets handcuff" off the companies.
Senate Majority Leader Harry M. Reid yesterday called the House Democrats' proposal "a tremendous step forward," but an aide said the Nevada Democrat is not planning to take it to the floor soon. "Since Republicans have refused to participate in the negotiations that led to this bill, it seems unlikely to achieve 60 votes in the Senate," Reid spokesman Jim Manley said. "Republicans should stop playing games on this important issue."