FISA Compromise II
Posted by Michael Cohen
So a few folks have responded to my Friday blog on the FISA compromise and I wanted to take this opportunity to say a few more words about it.
I should start off by saying once again that I am not thrilled with this bill; and I'm bothered by the retroactive immunity pass (though I'm fairly convinced that even without it telecom companies would never have been held legally responsible for this actions). But, I continue to believe that this was the best bill Democrats were going to get out of this White House and that the Democratic leadership made a smart and pragmatic decision to agree to this compromise.
Clearly I am in the minority in the liberal blogosphere. One of the more pernicious criticisms of Congressional Democrats has been the notion that the party "caved" on FISA. Indeed this argument is everywhere on the TPM website and the New York Times called it a "capitulation." Glenn Greenwald, in his usual understated style, accused the Democrats of appearing to be "surrendering and fearful." But these criticisms are wildly off-base and represent, on some levels, a fundamental misreading of how our legislative system works and the larger national security issues at play.
The FISA Compromise would only be a "cave" if the Democrats had another option than the bill which passed - they didn't. It was either this bill or no bill at all, because as I've noted before the White House would never have gone along with legislation that did not include retroactive immunity. (And of course from a technical standpoint the current bill does not include retroactive immunity, but instead forces the telecom companies to show in Court that they received written assurance from the White House that the spying was illegal). If the Democrats passed an extension of current FISA law, it seems clear that the White House would have vetoed it and Republicans in Congress would have not supported an override.
Frankly, many opponents of the bill have been overly blase about the consequences of such a development. In August, the one current one-year extension of FISA would have expired, with dangerous consequences for our intelligence-gathering ability. Here's how the Times describes the problems in a June 10th article.
A return to the old rules, they said, would mean that government lawyers, analysts and linguists would once again have to prepare individual warrants, potentially thousands of them, for surveillance of terrorism targets overseas.
Telecommunications companies would also have to spend considerable time shutting down existing wiretaps, and then start them up again if ordered under new warrants, officials said. In some instances, the broad orders given to the companies starting last August cover tens of thousands of overseas phone numbers and e-mail addresses at one time, people with knowledge of the orders said. A senior intelligence official, speaking on condition of anonymity, said the administration was concerned that reverting to the older standards and requiring individual warrants for each wiretap would create a severe gap in overseas intelligence by raising the bar for foreign surveillance collection.
In some cases, the government might simply be unable to establish in court why it suspected that a foreign target was connected to terrorism. Part of the problem, officials said, is that communications going from one foreign country to another sometimes travel through a telephone switch on American soil and, under some interpretations of the older rules, could not be tapped without an individual warrant.
Even some Democrats, at odds with the White House for months over the surveillance issue, said they were worried about the summer situation. “Until August, we’re O.K.,” said one senior Democratic Congressional aide involved in the negotiations. “After August, we’re not O.K.”
This would be completely unacceptable from a national security standpoint. The three months before a US presidential election are a prime moment for a terrorist attack. To leave the United States even one iota vulnerable would be an example of the Congress abdicating its national security responsibilities. As I've said before, this bill is hardly what I consider ideal, but with the recognition that the White House had made retroactive immunity it's red line in these negotiations, Democrats had a responsibility to do the right thing here. Lord knows expecting responsible behavior from the White House on this issue is a fool's errand.
Some have argued that Democrats could care less about the policy implications of FISA and only care about maintaining their congressional power, but again it's a bit more complicated than the hyperbole would suggest.
As Nate Silver points out at fivethirtyeight.com, 23 out of 31 swing district Democrats voted for this bill. One can wonder whether it's because they are simply more conservative than other Democrats or because they are concerned about holding on to their seat, but for Nancy Pelosi and Steny Hoyer to have allowed this issue to be used as a political tool against them, they would have been undercutting their own caucus. That hardly seems like smart leadership to me.
As for Barack Obama's support for the compromise, Nate hits is right on the head:
I'm not sure that he had much choice but to come out in support of the legislation. Was he really going to throw Nancy Pelosi under the bus and pick an intraparty fight when she was as instrumental as anybody else in Washington in getting him the nomination? Was he really going to run afoul of the Blue Dogs when they are probably his swing voters in passing some version of national health care legislation?
For those who argue that the Democrats are not interested in the particulars of the FISA bill and just want to take it off the political table, well what about the fact that back in February they stood up against the White House and refused to rubberstamp an extension of the FISA bill?
Truth be told, Congressional Democrats actually deserve praise on one level. In February, they resisted White House pressure to pass an immediate extension of the Protect America Act (passed last August) and demanded more significant changes to the law - hence the agreement we have today, which even Patrick Leahy (an opponent of the most recent compromise) agrees is a significant improvement.
With respect to the surveillance authorities, I believe the bill represents an improvement over the flawed legislation passed the Senate earlier this year. I applaud Representative Hoyer and Senator Rockefeller for their diligent work in negotiating this package. They added protections to the surveillance authorities that bring it closer to the bill the Senate Judiciary Committee reported last year. If the bill passes, I will work with the next administration to make additional improvements.
Finally, one of the greatest criticisms of the Bush Administration has been that they have played partisan politics with national security. I think all of agree that we need more bipartisanship on these issues and if Democrats think it's a smart thing to ram legislation down the throat of Republicans come January then we risk falling in to the same cycle of recrimination and bitter divisiveness on foreign policy decision-making. Passing legislation is fundamentally, in our political system, about compromise and it's not always pretty. Democrats backed down on retroactive immunity, the Bush Administration conceded that the judicial branch must have oversight of domestic eavesdropping and the nation has a better ability to conduct domestic surveillance and, hopefully, prevent the next terrorist attack. It's not ideal, but under the circumstances it's not a bad deal.
(Tomorrow, I will write a few words about why I think telecom companies are getting a bum rap here.)