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The statement, signed by 20 Democratic members of the House Judiciary Committee, refused to extend immunity to companies retroactively because the Bush Administration had not presented a "credible case justifying the extraordinary action." Instead, the Committee members support a resolution that would allow telecommunications companies to defend themselves in court, allowing classified information to presented to only the judge as a safety measure.

"Our review of the classified information has reinforced serious concerns about the potential illegality of the Administration's actions in authorizing and carrying out its warrantless surveillance program," stated the signatories, led by John Conyers, Jr. (D-MI). "We, therefore, recommend the creation of a bipartisan commission to conduct hearings and take other evidence to fully examine that program."

On Tuesday, House Representatives circulated a bill that would deny telecommunications firms retroactive immunity from lawsuits and would set up a commission to investigate the Bush Administration's actions. The bill would continue to make the Foreign Intelligence Surveillance Court (FISC) the sole body able to approve surveillance, has provisions for emergency wiretaps, does not allow intelligence officials to skirt the rules if targeting people outside the U.S., and gives immunity to telecommunications companies for current and future cooperation, according to a summary posted by Wired News.

The Attorney General and Director of National Intelligence released a joint statement on Tuesday condemning the latest House draft.

"Based on initial summaries of what the proposal contains, we are concerned that the proposal would not provide the Intelligence Community the critical tools needed to protect the country," the intelligence officials stated (pdf). "The Senate already has passed a bipartisan bill that would give our intelligence professionals the tools they need to keep America safe. The bipartisan bill was carefully crafted to ensure important intelligence operations were not harmed by new legislation."

Revising the 30-year-old Foreign Intelligence Surveillance Act (FISA) has preoccupied Congressional leaders and the Bush Administration ever since the New York Times revealed that the National Security Agency (NSA) had broadly eavesdropped on telephone and Internet communications. The agency had allegedly installed special rooms equipped with wiretapping hardware in important communications hubs with the blessing of major telecommunications firms. A whistleblower has claimed that AT&T had one such room, while a security consultant recently stated that a major cellular telecommunications company allowed a third party to directly connect, via a line known as the "Quantico circuit," into their systems.

The Foreign Intelligence Surveillance Act (FISA) passed in 1978, requires that all government surveillance for intelligence purposes must first be sanctioned by a court order allowing the eavesdropping from the Foreign Intelligence Surveillance Court (FISC). The secretive court, which rarely issues rulings, also allows emergency warrants up to 72 hours after surveillance has begun. Some critics have argued that the 72-hour limit is not long enough to file and get approved a warrant.

Last month, the Senate passed a bi-partisan bill that would give the Attorney General and the Director of National Intelligence the ability to authorize warrants and would have granted full, retroactive, immunity to any telecommunications carrier that cooperated with the Bush Administration's surveillance.

President Bush slammed House Democrats on Thursday for not passing the bill and for allowing the expiration of a law that temporarily broadened the government surveillance powers.

"Unfortunately, instead of holding a vote on the good bipartisan bill that passed the United States Senate, they introduced a partisan bill that would undermine America's security," President Bush said in a statement Thursday morning. "This bill is unwise. The House leaders know that the Senate will not pass it. And even if the Senate did pass it, they know I will veto it."

President Bush has threaten to veto any bill that does not grant retroactive immunity to telecommunications companies that allowed access to their networks.

Retroactive immunity has never before been granted wholesale to companies. The current FISA law, passed in 1978, came after a similar investigation by Congress into government eavesdropping on telegraph communications under Project Shamrock and the Watergate breakins. Congress considered retroactive immunity for the companies that cooperated with U.S. intelligence agencies at the request of the Ford Administration, but the proposal failed.

Just as the Church Commission investigated excesses of the intelligence community and executive branch, the bi-partisan commission called for by the House bill would investigate the latest surveillance apparatus, said Tim Sparapani, senior legislative counsel for the American Civil Liberties Union (ACLU).

"This is history literally repeating itself," Sparapani said. "It is mass, untargeted surveillance of the entire communications stream. From our point of view, we think it is no different."

In denying the Bush Administration's strong position on retroactive immunity, the House Judiciary Committee members cited a number of issues that made immunity unnecessary, chief among them that telecommunications companies already do have immunity to prosecution under many circumstances, such as if they can provide a statement from the Attorney General that no warrant was required for the information turned over to the U.S. Department of Justice.

Other issues with the Bush Administration's arguments included that different carriers had different responses to the administration's request for access to communications, that the legal case was not clear at the time the surveillance requests were made. Moreover, and that the Bush Administration used no single legal justification for asking for surveillance capabilities from the telecommunications firms without first getting a warrant as required by FISA. The Judiciary Committee members also underscored that important legal issues remain and need to be ruled upon by the courts.

"The House leadership deserves real credit," the ACLU's Sparapani stated. "For not budging on immunity, and that's important, given that they have been under relentless assault by the White House bully pulpit."