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.)
 

Comments

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[Kevin Jon Heller]

"the Bush Administration conceded that the judicial branch must have oversight of domestic eavesdropping"

Really? By all means, Michael, point us to where the Bush administration has renounced its belief that the President's Article II power trumps FISA. I think you're going to have trouble doing so. Consider this snippet from The Washington Post last year:

Perhaps a more accommodating, updated FISA would encourage the administration to follow the law rather than circumvent it, but the administration's testimony before the Senate intelligence committee last week on that subject was hardly reassuring. Sen. Russell Feingold (D-Wis.) asked if the administration had "any plans to do any surveillance" outside of FISA. "None that we are formulating or thinking about currently," replied the director of national intelligence, Mike McConnell. "But I'd just highlight, Article II is Article II, so in a different circumstance, I can't speak for the president what he might decide." With answers like this, how can lawmakers trying to fix this statute have any confidence the administration will live by the rules Congress lays out?

Perhaps your "few more words" about the "compromise" might address why putting the word "exclusive" in FISA in bold and italics and underline -- really, we mean it this time! -- changes the Bush's administration's constitutional calculus. Until then, it's difficult to take your defense of the "compromise" seriously.

[MarkW]

So, in a nutshell, your argument is that 1) the eavesdropping authority in this bill, and the massive infringement of liberty that it involves is in some way absolutely essential for us to be safe, that 2) any failure to give the Bush Administration this authority right now would mean unstoppable terrorist attacks in the near future, and so 3) the responsible Congressional leadership had a duty to cave in to Bush's demands on telecom immunity and other issues, and 4) anyone who disagrees simply is too stupid to understand the absolute necessity and irrefutable wisdom of giving up some of our hard-won liberties in order to purchase a little temporary safety.

Got it. Now, prove that with facts.

[Tim]

"Democrats backed down on retroactive immunity, the Bush Administration conceded that the judicial branch must have oversight of domestic eavesdropping"

Translation: the Democrats in Congress passed a law that expanded the President's spying powers over Americans in exactly the way that he demanded after he already illegal expanded them that way, and also the law prevents the investigation and litigation over the illegal actions of some major corporations, which aided and abetted that crime, and they also have massive access to our private lives and both knew what they were doing was illegal and were not under the pressure of "the days after 9/11" as many hype; and in exchange President Bush acknowledged that in the future he is not allowed to break the law and subvert the legislative or judicial branches of government (even though that's exactly what he did to precipitate this crisis, and exactly what the Congress just passed a law that just forgave him for doing).

Let me tell you how wonderfully happy I am that President Bush tacitly acknowledged that he is not the dictator or king of this county. Yep, a great day for Democracy in the US.

[Jay C]

You want more comments on the FISA fiasco, Michael? OK: here's one:

The House - and presumably upcoming Senate - "cave" in the FISA renewal is a huge and bitter disappointment to any of us in this country who actually take the notions of "rule of law" and "civil liberties" seriously - or the historic principle (and longstanding American tradition) that the President of the United States is NOT some unaccountable quasi-monarch with unreviewable powers above the law as long as he can cite "national security" grounds - however specious.

And Congress has let the Bush Administration get away with their abuses (yet again). You may be right that "allowing" the FISA Act to expire in August might pose some sort of danger to the nation's actual intelligence capabilities - but that the criminal gang that is the current Administration has used an issue of real "National Security" to fundamentally blackmail Congress into enabling their disgraceful abuses doesn't make the bitterness any easier to deal with.

[Bob]

You write,

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?

First, to nitpick, you obviously meant extension of PAA (which had a sunset clause, and which was expiring) and not extension of FISA (which had no sunset clause, and wasn't expiring).

Second, on a more substantative note, it wasn't the Democrats who "refused to rubberstamp" an extension of PAA.

U.S. House Democrats overwhelmingly voted for the extension of PAA in February.

The party that stonewalled and defeated the extension of PAA was the Republicans (with help from a handful of Democrats).

Nancy Pelosi's blog:

http://speaker.gov/blog/?p=1157

Pelosi Statement on FISA Negotiations
February 22nd, 2008 by Office of the Speaker
"If the expiration of the PAA has lessened the willingness of telecommunications companies to comply with surveillance requests to protect our national security, the President and Congressional Republicans have only themselves to blame for refusing to support the PAA’s extension."
- - Nancy Pelosi

All that Pelosi and Hoyer needed to do to defuse this issue, and to solve the problems described in the NYTimes June 10th article, was to repeat their actions from February, and to vote for another PAA renewal.

Then, if the White House and/or GOP blocked the PAA renewal - - and caused the alleged problems which might be caused by PAA expiration and which were described by the sources quoted in the NYTimes June 10th article - - the blame for those problems would have been squarely and unavoidably on the White House and the GOP.

The White House and GOP answer to that gambit was to push the completely absurd lie that, without telecom immunity for following unlawful orders, the telecom companies couldn't be compelled to follow lawful orders, and wouldn't co-operate with foreign intelligence surveillance.

That tactical lie was so weak and so laughable and so easily punctured that it's simply not credible that the Democrats were actually afraid of it.

[Danp]

When you write your piece tomorrow about how the telecoms are getting a bum rap, please be sure to address the allegations that they were cooperating before 9/11. Also do you know how many people stand between political appointees and those who actually have access to phone calls and e-mails? Why should citizens not be concerned about the NSA or the FISA program being used as an opposiion research tool by the party in charge of the exec, branch. Thanks.

[Bob]

Why do some Democrats forget just how wrong Karl Rove's "the math" was in 2006?

January 20, 2006:
http://cnn.com/TRANSCRIPTS/0601/20/ldt.01.html

[...]The Bush administration today launched a new campaign defending the president's decision to authorize those secret wiretaps. The White House counterattack today led by someone we haven't heard from for quite some time, presidential adviser Karl Rove.

[...] KARL ROVE, DEPUTY CHIEF OF STAFF: Republicans have a post-9/11 view of the world, and Democrats have a pre-9/11 view of the world. That doesn't make them unpatriotic, not at all. But it does make them wrong.

- - Karl Rove, January 2006, as quoted at CNN

[Bob]

Karl Rove's "the math" (continued)
* * *
October 18, 2006:
http://washtimes.com/news/2006/oct/18/20061018-123042-6508r/

White House political strategist Karl Rove yesterday confidently predicted that the Republican Party would hold the House and the Senate in next month's elections [...]
[...] At a luncheon with editors and reporters at The Washington Times, Mr. Rove -- who is widely credited as the architect of the party's historic 2002 midterm election gains -- said Republicans are beginning to make significant headway [...]
[...] President Bush has begun to paint this year's election as a choice between strength and weakness on national security -- and the stark differences will show Americans the true nature of Democrats, Mr. Rove said.

"It is useful to remind people what [Democrats] said and what they do. I think they have given us here, especially in the last couple of weeks, a potent set of votes to talk about. You had 90 percent of House Democrats voting against the terrorist-surveillance program, nearly three-quarters of Senate Democrats and 80 percent of House Democrats voting against the terrorist-interrogation act. Something is fundamentally flawed."

- - Karl Rove, October 2006, as quoted in the Washington Times

* * *

[Bob]

And one more thing before I go.

Democrats in 2006 mostly voted against the MCA, and managed to completely block the FISA revisions which the White House claimed were desperately needed.

Karl Rove, the unbeatable political genius, said those positions would be disastrous for the Dems and would win the election for the GOP in 2006.

I think we all remember how wrong Karl's "the math" was.

Now, in 2008, why should anybody believe the Rovian nonsense that standing up for civil liberties could possibly cost the Democrats their hold on the Senate and House?

The Rovian "math" isn't the real math, not in 2006, and not in 2008.

Even way, way back in 2005, the real math was evident:

December 20, 2005:
http://cnn.com/2005/POLITICS/12/19/bush.poll

Tuesday, December 20, 2005
A CNN/USA Today Gallup poll conducted over the weekend found [...] Nearly two-thirds said they are not willing to sacrifice civil liberties to prevent terrorism, as compared to 49 percent saying so in 2002.

Not that there's really any need to choose between civil liberties and security (heck, the Bushies have managed to decimate both at once) but if faced with such a decision, then most American realize that liberty is worth a few risks.

Or, as the saying goes, Freedom isn't Free.

[Jim]

So, your "support" for the proposition that a return to the 1978 FISA legislation (which has, incidentally, been amended numerous times to keep it up to date) would be Horrible, Terrible, Suicidal is... one New York Times article featuring quotes from unnamed, anonymous Washington "officials" who make those wild claims about the Disastrous Consequences of a return to a law that's worked just fine for 30 years, a return to oversight by a court that that turned down ZERO warrant applications from 1980 to 2002. This is your "support"? All the article establishes is that a bunch of Washington officials are saying scary things about the 1978 FISA legislation, with no support and without even giving their names -- which is exactly what any critical thinker would expect to happen, and any critical thinker would take those scary predictions with several pounds of salt.

The second quoted paragraph in the NYT "story" cites the one verified problem with the 1978 legislation. It would take a paragraph to fix: one paragraph, clarifying that foreign-to-foreign communications that are routed or switched through equipment located in the U.S. are not subject to the FISA requirements. That's it. Done. You don't need a 114-page bill, negotiated in secret, revealed on a Thursday and voted on in the House less than twenty-four hours later, to get that done. Clearly, there's more going on here.

Congress had plenty of options open to it other than passing this new, draconian 114-page bill, drafted in secret and revealed at the last possible second (undoubtedly to prevent civil libertarians from organizing successfully against it). It could have simply extended the Protect America Act surveillance orders for another several months, at which point a new Congress and Administration could consider any legislative fixes to FISA in what one would hope would be a saner political climate. It could have provided indemnity for damages to the telecoms but allowed the lawsuits to proceed, because those lawsuits are not really about damages -- they're about trying to find out, through the discovery process, what the Administration and the telcoms have been doing, illegally, since 2001. And it could have simply passed the one fix mentioned above to clarify the routing situation. Neither the NYT article, nor you, have given any evidence whatever why these sweeping new changes are needed.

Julian Sanchez has a must-read op-ed in the L.A. times:

http://www.latimes.com/news/opinion/la-op-sanchez16mar16,0,4039194.story

Sanchez reminds us that the 1978 FISA legislation was passed after revelations in the Church Committee hearings of extensive government spying on its political enemies in the United States -- union leaders, civil rights leaders, peace activists, members of the opposition party, proponents of legislation the administration opposed, candidates for Supreme Court positions, and more. Sanchez traces politically-motivated wiretapping by Presidents from Harding through Nixon. The FISA amendments not only codify and condone past lawbreaking (as many have termed it, "one part Nixon and one part Nuremberg defense"), but they grant the executive branch draconian new surveillance powers that will make the abuses Sanchez details essentially unreviewable by any legislative or judicial body. You may be fine with that. I'm not.

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