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House Rejects Telecom Immunity

By March 18, 2008

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Last week, the House of Representatives took the unusual action of holding a closed session, only the sixth since the War of 1812. The purpose? To talk about FISA, the Foreign Intelligence Surveillance Act, a bill encumbered by the Senate with a provision to retroactively provide US telecommunications firms with a "get out of jail free card" for succumbing to White House requests for warrantless wiretapping.

What you didn't hear in those pleas for immunity? A reminder that one telecom followed the advice of its lawyers and refused to play. That's right, Qwest doesn't need retroactive immunity.

The fate of FISA and the immunity provision is now in the hands of the conference committee, since the House rejected the Senate bill by passing (213-197) the House bill, HR 3773. In fact, the House did more than just reject the Senate bill:
[T]he House Democrats doubled down on their original legislation, by including a call for a commission, armed with subpoena power, that would investigate the secret spying. The bill also allows telecoms to defend themselves in court by showing secret documents to federal judge. The Bush administration had blocked them from using classified information in their own defense.

FISA remains in limbo land as the Congress goes on Easter recess. The President continues to insist that he will veto any bill that does not provide for telecom immunity and yet he insists that a bill is needed urgently because of national security.

Background On Closed Session
The closed session resulted from a request by House Minority Whip Roy Blunt (R-MO). In a closed session, all participants are sworn to secrecy, according to the Congressional Research Service (pdf).

Authority for secret sessions is implied in the Constitution, Article I, Section 5:

Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy ...

The 2004 CRS report notes that the Senate has held 53 secret sessions since 1929; six of those were related to the impeachment trial of President Clinton.

Although the House met in secret frequently during the War of 1812, since then it has done so only six times: 1825, 1830, 1979, 1980, 1983 and 2008. (See Table of Closed Sessions)

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