Rebuffing a series of incendiary statements from President Bush, House Democrats left town for a week without granting telecommunications firms immunity from violating federal privacy laws.
In a speech on Thursday, Bush accused Democrats of endangering "the lives of countless Americans" by not enacting the legislation he and fellow Republicans had proposed, which includes retroactive immunity for telecommunications companies that illegally opened their networks to the National Security Agency.
The White House subsequently circulated a statement saying: "This risks creating new intelligence gaps, which damages our national security and makes no sense if the first priority is making sure our citizens are safe."
There is a sharp political irony here. The irony is that nearly all House Democrats actually had voted a day earlier to extend the controversial wiretapping law for three weeks--but that bill didn't include telecom immunity.
That wasn't good enough for Republicans, who wanted both the extension and retroactive immunity. Bush even threatened a veto of a bill without retroactive immunity. Portions of the so-called Protect America Act are scheduled to expire on Saturday.
What makes this situation rather bizarre is that retroactive immunity (for alleged illegal activities by AT&T and other telecommunications companies years ago) is unrelated to extending the Protect America Act (which deals with future surveillance authorization). That makes this situation a little like Bush threatening to veto, say, a defense spending bill if it doesn't include authorization for an invasion of Iran.
For their part, Democrats are dismissing Bush's claims as unnecessary fear-mongering. House Majority Leader Steny Hoyer of Maryland said:
The president asserts that the expiration of the Protect America Act will pose a danger to our country. The former national security council advisor on terrorism says that's not true. Former assistant attorney general says that's not true. Numerous others, and the chairman, has asserted that's not true. Why is that not true? Because FISA will remain in effect. The authority given under the Protect America Act remains in effect. And if there are new targets, the FISA court has full authority to give every authority to the administration to act.
Hoyer is, of course, talking about the secret court created by the Foreign Intelligence Surveillance Act. That court has existed since 1978, and has the power to grant wiretapping orders upon request (remember that the Protect America Act has only been around since last August). FISA even permits the attorney general to conduct wiretaps without court approval in an "emergency situation."
Rep. John Conyers, the Democratic chairman of the House Judiciary Committee, added:
From what I have seen from the Justice Department documents so far, there is no need to provide amnesty to telecommunication companies who are protected under current law, as long as they and the government are acting accordingly. I have not seen anything that leads me to believe, as the president seems to believe, that providing amnesty to these companies is a more compelling public interest than our constitutionally-protected right to privacy. We must maintain our civil liberties and give the government the tools it needs to collect intelligence information, but I do not believe telecom amnesty is necessary in order to accomplish that goal.
So what happens next? Not much, until Congress gets back from its recess. Then we'll see if the president is willing to negotiate with House Democrats over the scope of federal wiretapping law and retroactive immunity--or whether he'll go back to violating McCullagh's First Law of Politics.