As a result of our review of classified as well as unclassified materials concerning the Administration’s Terrorist Surveillance Program, we have concluded that blanket retroactive immunity for phone companies is not justified. However, we do recommend a course of action that would both permit the carriers the opportunity to defend themselves in court and also protect classified information – by eliminating current legal barriers and authorizing relevant carriers to present fully in court their claims that they are immune from civil liability under current law, with appropriate protections to carefully safeguard classified information. In addition, we recommend legislation to fill a current gap in liability protection for carriers, and to create a bipartisan commission to thoroughly investigate the legality of the warrantless surveillance program....McJoan's comment:
Accordingly, we support a resolution that would, notwithstanding the state secrets doctrine, authorize relevant carriers to present fully in court their claims that they are immune from civil liability under current law, with appropriate security protections to carefully safeguard classified information. This solution would ensure that carriers can fully present their arguments that they are immune under current law, while also ensuring that Americans who believe their privacy rights were violated will have the issue considered by the courts based on the applicable facts and law, consistent with our traditional system of government and checks and balances.
Our review has also led us to support two other recommendations. First, there is arguably a gap in liability protections for carriers that complied with lawful surveillance requests covering the time period between the expiration of the Protect America Act and the future enactment of more lasting FISA reform legislation. As Speaker Pelosi and Senate Majority Leader Reid have proposed, legislation to fill that gap is justified and important. This provision is not included in the Senate FISA bill, and shoul dbe included in any final legislative product.
In addition, our review of classified information has reinforced serious concerns about the potential illegality of the Administration’s actions in authorizing and carrying out its warrantless surveillance program. We, therefore, recommend the creation of a bipartisan commission to conduct hearings and take other evidence to fully examine that program. Like the 9/11 Commission, it would make findings and recommendations in both classified and unclassified reports and thus inform and educate the American people on this troubling subject.
This statement is a solid justification for the legislation House leadership introduced yesterday. It also covers some new ground. First, it found among the telcos "a variety of actions at various times with differing justifications in response to Administration requests." So it was potentially not just Qwest. Additionally, "a variety of actions at various times with differing justifications in response to Administration requests," making the case critical to be decided by the courts, not by Congress. Furthermore, "the arguments for blanket retroactive immunity – that a decision not to enact it will irreparably harm the relevant carriers and that it will endanger our national security – have not been substantiated, either in a public or a classified setting."
This is a strong rebuke for retroactive amnesty, and provides what would be a legal, responsible, and appropriate solution to the amnesty stalemate. Which means, of course, that the Republicans (and probably Rockefeller) will oppose it.
The struggle on this issue is not over, but the letter from the 19 members of the House Judiciary Committee is a hopeful sign. Stay tuned.