Classified documents and testimony about the National Security Agency's warrantless wiretapping program show that it's not necessary to grant retroactive immunity to telephone companies accused of unlawfully opening their networks to government spies, key congressional Democrats said on Wednesday.
In a five-page statement (PDF), U.S. House of Representatives Judiciary Committee Chairman John Conyers and 18 Democrats on that panel contended the Bush administration has "not established a valid and credible case justifying the extraordinary action of Congress enacting blanket retroactive immunity."
Skepticism about the Bush administration's once-secret eavesdropping program is nothing new for the Democrats who signed onto the statement. The key difference here is that they say their latest conclusions are based on a series of classified reports and briefings to which many of them only recently had access.
"Our review of classified documents has reinforced serious concerns about the potential illegality of the administration's actions in authorizing and carrying out its warrantless surveillance program," they wrote.
The report's release comes on the eve of expected debate on a new Democratic spy law revamp, co-sponsored by Conyers, that does not grant retroactive immunity. The House has been facing intense pressure from the Bush administration to enact, without changes, a Senate bill that does offer such immunity and greatly expands the executive branch's power to sign off on surveillance of persons "reasonably believed to be outside the United States" without a warrant.
The House Democrats' latest report reveals several reasons that they have concluded retroactive immunity is not appropriate.
One is that telecommunications carriers approached by the government took "variable actions" in response. It's not exactly clear what that means, as the report's authors said they weren't at liberty to unveil classified details, but apparently the companies engaged in "a variety of actions at various times with differing justifications."
The Democrats also found there was no "one simple, straightforward legal rule" that the carriers and the administration followed in the midst of the wiretapping requests. Analysis about whether the various legal justifications jibe with federal law--and whether consumer privacy violations raised by pending lawsuits did, in fact, occur--are best settled by courts, not members of Congress, they wrote.
Furthermore, the Democrats said they hadn't seen any evidence that the carriers' reputations or financial viability would endure damage if the lawsuits were allowed to proceed. In fact, carriers might be "best served" if allowed a chance at clearing their names in court, they added.
The new Democratic bill proposes setting up a procedure in which a judge could review otherwise classified evidence that might help telephone companies prove they deserve to be let off the hook for alleged missteps. That proposal is designed to address one of the major potential roadblocks in the some 40 suits pending related to the government's warrantless wiretapping regime: the Bush administration's stance that "state secrets" could be exposed if such evidence is used.
Given the Bush administration's unwavering stance on retroactive immunity so far, it seems unlikely that a new report based on information culled from the executive branch will produce an immediate turnaround. Republican leaders and the White House have already proclaimed it "dead on arrival," and intelligence officials have said it doesn't give them the tools they need. Still, it may help the Democrats to apply political pressure and drum up enough votes to pass an immunity-free bill, even if a veto threat looms.