Don't Mourn, Nothing Died Yet

I know Matt Stoller wants to believe the worst about the coming debate on the FISA bill, but you'd think he'd at least notice that the House Judiciary Committee just rejected retroactive immunity for telecom companies who participated in illegal warrantless surveillance, by a 21-14 vote.

Critics say the program was illegal. The Electronic Frontier Foundation, a privacy advocacy group, sued telephone company AT&T Inc last year and accused it of illegally allowing the government to monitor phone calls and e-mails.

The White House maintains Bush acted within his authority in ordering the program.

Bush said the new bill "must grant liability protection to companies who are facing multibillion dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks."

But Rep. Jerrold Nadler, a New York Democrat, said the liability issue should be a court matter. "Let the courts decide whether these companies, or some of them, were acting patriotically with nobility and legally, or if they were breaking the law."

Bush can howl all he wants, but Nadler is right. The hope here is that he gets to make such a case in conference committee and fight the potential Senate inclusion of immunity. Steny Hoyer is a snake and needs to be watched, but stalwarts like John Conyers are fighting the good fight on this bill.

To those who would claim that this bill is weak on terrorism, I would say that protecting the civil rights and liberties of Americans does not show our weakness, but our strength. What the terrorists fear most is our constitution and our values, and that is what this bill protects.

To those who say that the bill is too weak on civil liberties, I say that if you trust an independent court and have faith in congressional oversight, those liberties will not be jeopardized. That is the premise our democracy was founded on, and that is exactly what this bill does.

I am concerned, along with the ACLU, about these "basket warrants" that aren't directed at anybody, which would seem to open the door to all kinds of abuse. But there is oversight over them, in the form of a quadrennial review.

Republicans are committed to stringing this out until the day before the August bill expires, and then playing the fear card to force the Democrats into submission. That may work, but the best defense would be a good offense, and the Progressive Caucus is mulling that one over.

According to House Dem aides, House liberals appear to be leaning in the direction of supporting the legislation -- though nothing is at all certain. Earlier today, an aide says, an internal count of House members showed very strong opposition among liberals to the bill unveiled today. But later in the day, some liberals appeared to be privately concluding that many of their demands -- which they unveiled amid last week's revolt in hopes of influencing the process -- had been met, this aide says.

Indeed, one key House liberal who'd taken a stand against earlier manifestations of the measure -- Jerrold Nadler -- announced today that he would support the bill. In a statement his office claimed the bill "reinforces the role of the Foreign Intelligence Surveillance Court in regards to electronic surveillance programs," and "requires that FISA warrants are required when targeting domestic communications," though it doesn't require them for foreign ones.

Still, things are in flux, and the aide cautions that a key sticking point for liberals remains -- the measure's embrace of "basket" wiretapping. House liberals are meeting behind closed doors as we speak to debate what their stance should be on the legislation. The House liberals' efforts are being coordinated by Bill Goold, an aide to Rep. Lynne Woolsey (D-CA), one of the key House libs behind last week's mini-revolt.

I'm hoping for some amendments on the basket warrants issue. At issue also is the privacy of Americans making foreign communications. But on balance, I've yet to see evidence that this is a craven sellout. We should be encouraging it in the right direction, not lamenting a capitulation before one exists.

UPDATE: Jerrold Nadler's full comments from the Judiciary Committee.