Dems Cave on Telecom Immunity

June 20, 2008 | Last updated: July 31, 2020

Image has not been found. URL: /wp-content/uploads/2008/09/hoyer1.jpgHouse Majority Leader Steny Hoyer (D-Md.)(WDCpix)

In February, as the law authorizing the Bush administration’s controversial warrantless wiretapping program was set to lapse, House Democrats brushed aside GOP threats and let the clock run out. Politically, the move was a gamble: White House officials had claimed the law — including retroactive legal immunity for the phone companies that participated — was necessary to protect the country from terrorist attacks. The administration pushed its message relentlessly.

To the delight of privacy and civil-liberties groups, however, the Democrats stood their ground.

Illustration by: Matt Mahurin Illustration by: Matt Mahurin

“We must not fall prey to fear-mongers who claim that our intelligence community could ‘go dark,’” House Majority Leader Steny Hoyer (D-Md.) said on the chamber floor at the time. “That is simply not true.”

Four months later, a very different scenario is playing out on Capitol Hill, where congressional leaders on Thursday unveiled a new agreement to expand the administration’s domestic wiretapping capabilities under the Foreign Intelligence Surveillance Act, or FISA. The bill would effectively lead to the dismissal of the roughly 40 civil suits currently pending against the telecom companies for allegedly violating the civil liberties of their customers.

This time around, House Democrats have jumped on board, calling the proposal an acceptable compromise balancing national-security challenges with civil-liberties concerns. The change of tune has caused the privacy groups to skewer the Democrats for caving on the administration’s immunity request. The groups accuse party leaders of sacrificing Americans’ civil liberties for fear of how the wiretapping issue will play out in the campaign.

“The Hoyer/Bush surveillance deal was clearly written with the telephone companies and Internet providers at the table and for their benefit,” Caroline Fredrickson, legislative director for the American Civil Liberties Union, said in a statement. “They wanted immunity, and this bill gives it to them.”

The House is expected to pass the measure Friday, with the Senate to follow next week. The White House, which has threatened to veto any FISA expansion that lacks immunity for the telecoms, said Thursday that it supports the bill.

Bruce Ackerman, professor of law and political science at Yale University, characterized the Democrats’ support for the proposal as “political cowardice, pure and simple.”

“The fact is that the Democratic leadership in Congress has done absolutely nothing to make good on its electoral mandate of 2006,” Ackerman wrote in an email. “It was elected to rein in the abuses of presidential power at home and abroad. And it is caving in — despite the massive unpopularity of the president’s policies.”

The legislation would empower federal district courts to decide whether the phone companies participating in the controversial surveillance program had received an official, written request from the Bush administration, including indication that the White House had deemed the warrantless cooperation to be lawful. Supporters say the additional court oversight holds the telecoms to some account for past actions.

“This bipartisan bill balances the needs of our intelligence community with Americans’ civil liberties, and provides critical new oversight and accountability requirements,” Hoyer, a key negotiator of the bill, said in a statement. “It is the result of compromise, and like any compromise is not perfect. But I believe it strikes a sound balance.”

Critics and legal scholars, however, have been quick to point out that the proposal doesn’t put the courts in a position to decide whether the administration’s requests violated any laws.

“The legality of the order itself would not be something for the court to adjudicate,” said Allen Weiner, a Stanford University law professor specializing in Internet and security issues. “It’s a face-saving technique that let’s some people claim there was a compromise. But on this issue of telecom immunity, it is not a compromise, it’s a capitulation.”

Some influential lawmakers have joined in the criticisms. Sen. Patrick Leahy (D-Vt.) issued a statement Thursday saying he won’t support the bill when it reaches the upper chamber. “This bill would dismiss ongoing cases against the telecommunications carriers that participated in that program without allowing a judicial review of the legality of the program,” said Leahy, who is chairman of the Senate Judiciary Committee. “Therefore, it lacks accountability measures that I believe are crucial.”

Sen. Russ Feingold (D-Wisc.) also blasted the proposal. “Allowing courts to review the question of immunity is meaningless,” he said in a statement, “when the same legislation essentially requires the court to grant immunity.”

Not all legal experts agree that the immunity language is without some consequence. Scott Silliman, executive director of the Center on Law, Ethics and National Security at Duke Law School, said the new bill is significant because it would force the administration to appear in court and produce written evidence that it authorized the surveillance program as a legal tool available to the White House. Still, Silliman added that the bill would do nothing to determine whether the president ever had the power to wiretap U.S. citizens without judicial oversight.

Some critics of the proposal are puzzled why House Democrats, whose stand in February energized the party’s liberal base, would change direction just a few months later.

“My reading in February was that it was pretty much a victory for Democrats — both in policy and politics,” said Tim Lee, an adjunct scholar at the libertarian Cato Institute.

But Julian E. Zelizer, a congressional historian at Princeton University, had a guess. He said the Democrats, who are largely expected to pick up congressional seats in November’s elections, don’t want to risk their current advantage over an issue that could brand them as “soft-on-terror.”

“It seems that’s the calculation they’re making,” he said. “We’ve seen this before. On defense and national security issues, the Democrats have a history of just giving in.”

Fredrickson, of the ACLU, also suggested that Democrats are running scared from the 30-second campaign ad. “They’ve just bought this argument that they’re weak on defense hook, line and sinker,” she said, “and it’s caused them to act like Republicans.”