House votes 213-197 to reject retroactive telecom immunity

The U.S. House of Representatives on Friday narrowly approved an electronic surveillance expansion without immunization for any telecommunications companies that illegally opened their networks to intelligence agencies.

The 213-197 split, with most Democrats voting in favor of the bill (PDF) and most Republicans opposing it, hardly means that the political tussle over retroactive immunity is over. It now shifts to the Senate, where Majority Leader Harry Reid, a Democrat, said he was "encouraged" to see the House vote.

But the primary obstacle remains President Bush, who has threatened a veto. The White House circulated a statement after the vote calling it a "a significant step backward in defending our country against terrorism" that was "not a serious effort to move the legislative process forward."

Another section that the Republicans dislike is this, which I'll excerpt:

ESTABLISHMENT OF COMMISSION.--There is established in the legislative branch a commission to be known as the "Commission on Warrantless Electronic Surveillance Activities"

The Commission shall ascertain, evaluate, and report upon the facts and circumstances relating to electronic surveillance activities conducted without a warrant between September 11, 2001 and January 17, 2007 (and shall) evaluate the lawfulness of such activities

Especially because the commission would be organized under the legislative branch, and would have subpoena power with the authority to enforce its subpoenas in court, it could result in some embarrassing disclosures about the National Security Agency's surveillance program.

Friday's vote also signals that the political climate has changed since last August, when Republicans outmaneuvered their opponents into voting for surveillance legislation with scant debate or hearings. Democrats acquiesced for fear of being perceived as soft on terror, with House Speaker Nancy Pelosi saying the bill did violence to the U.S. Constitution.

But now, with Hillary Clinton and Barack Obama both opposing retroactive immunity, with a new Justice Department report critical of FBI surveillance abuses, and with a stronger public perception of the Bush administration as having gone too far, the Democrats are more willing to fight back. Nineteen Democrats released a statement this week saying that they've seen classified documents and no immunity was necessary; an unusual closed session on Thursday was intended to make the same point.

Before the vote, House Intelligence Committee Chairman Sylvestre Reyes (D-Texas), said the measure gives telephone companies the ability to present otherwise-classified evidence, one-on-one with a judge, that could show they deserve such immunity. "If they did nothing wrong, as they have said, then they will be immune from any lawsuit," he said before the vote.

The debate before the vote was contentious, with more hoots and catcalls than usual. The lack of retroactive legal immunity for telephone companies also drew accusations from several Republicans that Democrats were handing out favors to lawyers who would ostensibly profit from the court proceedings moving forward. The bill is "nothing more than an earmark for the trial bar," charged Rep. Marsha Blackburn (R-Tenn.)

Republicans also assailed the Democratic leadership for failing to permit an up-or-down vote on the Senate version. They attempted, but failed to push through, a procedural move that would have allowed the House to consider the Senate version of the bill automatically if the House version didn't pass.

Republican leader John Boehner accused Democrats of failing to bring up the Senate bill "because it would pass."

Democrats repeatedly accused the Republicans and the Bush administration of engaging in a smear campaign designed to undermine their bill's passage. "The president has said our legislation will not make Americans safe," House Speaker Nancy Pelosi said. "The president is wrong, and I think he knows it."

Some pointed out that telephone companies and other corporations who open their networks lawfully to the government already have "immunity" under law. Rep. Zoe Lofgren (D-Calif.) read from that passage of existing law and then proclaimed, "I think the administration is more concerned about their liability than the phone companies."

News.com's Anne Broache contributed to this report.