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June 22, 2008

More on FISA
Posted by Michael Cohen

Here at Democracy Arsenal it's all FISA all the time!

Over at Salon, my good friend Glenn Greenwald has made some rather incendiary charges about the FISA bill that seem to reflect much of the debate going on in the liberal blogosphere over this bill. I think it merits a response:

Glenn argues:

The very idea that Democrats would lose elections if they didn't support this bill is false on numerous levels. They could have easily removed the issue simply by voting to extend the PAA orders for 6-9 months. More importantly, Karl Rove's central strategy in the 2006 midterm election was to use FISA and torture to depict the Democrats as being Weak on Terrorism, and the Democrats crushed the Republicans and took over both houses of Congress.

I would invite Glenn to review the past forty years of American political history to see why the first part of this statement is pretty hard to swallow. As for the notion that Democrats won in 2006 because they fought the Republicans on terrorism; this is not really accurate. They beat the Republicans on Iraq, which unlike 2004 (when Democrats lost) most Americans saw as separate from the war on terror.

It is worth noting that even today most Americans favor the GOP when it comes to fighting terrorism and think by a 53-39 difference that John McCain is better able to handle the issue than Barack Obama. This is the one political issue on which Republicans have the greatest political advantage. If our intelligence capabilities were eroded in August because of the failure to agree to a FISA compromise this would have been a campaign issue in November; and I'm hard pressed to believe that it would have favored Democrats. In fact, considering that 61% of Americans think it was wrong for the Supreme Court to give habeus corpus rights to Gitmo detainees, I think I know the answer.

But the second part gets to the issue I'm trying to focus on here. Simply extending the Protect America Act (PAA) would not have allowed this situation to go away, because there is virtually no chance that the White House would have signed off on a PAA extension that didn't include retroactive immunity.

The Democrats were in a bind here; make concessions to the GOP on retroactive immunity or let the PAA expire and get beat up in the fall election by Republicans saying that the Democrats have weakened America's defenses against terrorism (a point by the way that would actually have a kernel of truth). Oh and also letting PAA expire would have weakened our ability to eavesdrop on potential terrorists. Does any progressive believe that weakening the Democratic majority in Congress and possibly electing John McCain as President would be good for progressives or the hope for enacting progressive legislation next year? Honestly, this is just cutting one's nose to spite their face. If you think that retroactive immunity is the single most important issue facing the country then I suppose you might think I'm wrong, but I prefer to take a broader view.

Now on to Greenwald's even more incendiary charge:

What the Democratic leadership is saying is quite clear: we will continue to trample on the Constitution and support endless expansions of the surveillance state because that is how we'll win in swing districts and expand our Congressional majority. . . . The only objective of Nancy Pelosi and Steny Hoyer is to have a 50-seat majority rather than a 35-seat majority, and if enabling the Bush administration's lawbreaking and demolishing core constitutional protections can assist somewhat with that goal, then that it what they will do. That's what they are saying all but explicitly here.

Ignoring the larger question as to why Democrats might want to have a 50-seat majority (maybe to enact progressive legislation, like say measures to fight climate change or enact universal health care) this just flies in the face of reality. If Pelosi and Hoyer et all wanted to enable the "Bush Administration's law-breaking" then why did they resist passing the Senate Intelligence bill last Spring? A move, by the way, that was praised at the time by Mr. Greenwald.

Here again is what the New York Times had to say about the Democrats resistance to rubberstamping a bill highly favored by the White House:

The decision by the House Democratic leadership to let the law lapse is the greatest challenge to Mr. Bush on a major national security issue since the Democrats took control of Congress last year.

By refusing to pass the Senate bill, the Democratic Congress was able to get a BETTER FISA bill in the end - a view shared by an opponent of the current FISA compromise bill, Senator Pat Leahy.

All of this is ignored by those who prefer to beat their chests, call this bill a "capitulation" and fail to acknowledge the political realities that exist today in Washington. They ignore the fact that no matter how unpopular George Bush might be; he is still President of the United States and he still gets some say in how this legislation will look. They ignore the provisions in this legislation that will lead to improved oversight of domestic surveillance, they ignore the tools to modernize FISA and data collection writ large. Read here for a more detailed discussion of some of the important legal restrictions and modernization tools included in this legislation and here for another perspective on some of the problems in the compromise bill. And they ignore the fact that some Democrats, like Speaker Pelosi, might actually believe improving the intelligence community's ability to gather intelligence is a critical national security objective.

Pelosi had another reason for backing the compromise: unlike some on the left, she actually believes domestic surveillance laws needs updating in light of the new terror threats. "We can't go without a bill," she said on the House floor Friday, "That's simply just not an option." Existing U.S. surveillance law, passed in 1978, needs to be improved, she believes, not just to protect Americans at home but to protect U.S. troops in the field. "Our troops in the field depend on timely and reliable intelligence," she said

Finally, as I've said before the fact that White House has agreed to bind itself to FISA oversight is an important concession that should not be underestimated. Now many have argued that this was a key element of FISA for the past 30 years. This is certainly true, but clearly the White House and key Republicans disagreed and this was holding up the passage of FISA modernization legislation. Making this understanding a part of statutory law will bind future Presidents, either Obama or McCain. And while I have confidence in Barack Obama on this issue, I would also add that nothing in John McCain's background leads me to believe that he has much disrespect for the rule of law as this Administration or that he adheres to the belief in a unitary executive. So this seems to be an important tool in obligating future Presidents to the centrality of the courts in conducting domestic surveillance.

Now again some will argue that the concession on retroactive immunity is simply too much to bear and that this legislation is thus horribly flawed. Clearly I don't agree, but I can't say that I don't respect the argument. I am bothered too by the lack of accountability for both telecom companies and the officials who put this surveillance system in place. (Although I am pleased to note that the IGs of various agencies will be forced, under this legislation, to issue a report on its legality).

I understand that people can disagree; but respect for genuine disagreements seems to be a one-sided game. Take as a final example, Greenwald's argument that progressives should raise money to target Democrats who supported this bill.

If, as a result of their destruction of the Fourth Amendment and the rule of law, they see that they lose seats -- that John Barrow and Chris Carney are removed from Congress and Steny Hoyer's standing in his district is severely compromised and that list of targets continues to grow -- then they'll conclude that they can't build their Vast and Glorious Democratic Majority by dismantling the Constitution and waging war on civil liberties. The Democratic Party in Congress is enslaved to the goal of winning more "swing districts" by supporting extremist measures -- such as the FISA "compromise" -- that please the right-wing. They need to learn that they won't benefit, but will suffer, when they do tha

"Dismantling the Constitution," "waging war on civil liberties;" honestly this is pure insanity. Does anyone truly believe that Democrats in Congress are intent on "dismantling the Constitution?" Seriously, Greenwald and others need to get a grip. You want to disagree with those Democrats who supported this bill, fine - I'm not here to tell you that you're wrong. But to suggest that progressives should then raise money to lessen the Democratic majority in Congress and subsequently ignore the fact that the only reason we are even having this debate is because of the lawless practices of George Bush; well if you think this is a good idea, you need to have your head examined.

This is the sort of "logic" that underpinned Ralph Nader's 2000 run for the White House, and we all know how well that worked out. There is a significant difference in how the two parties view the issue of domestic surveillance. This recent Congressional debate demonstrated that fact. Those who would imperil a Democratic majority ignore this highly salient fact at their own peril.

I have said this once and I will say it again until I am blue in the face; this is an imperfect bill, but Democrats were NEVER going to get a perfect bill out of this President and this divided Congress. They were NEVER going to get a bill that didn't feature retroactive immunity. They got a bill that was a policy improvement and a political victory. This is the way Washington works; there is a no such thing as a perfect bill and even if Barack Obama is elected in November and he has a strong congressional majority simply ramming legislation down the throat of the Republicans is a neither politically smart, nor a terribly effective way to run a country. We have a political system that embraces political compromise and rejects one-sided solutions to serious policy challenges. This bill is a good example of that approach to governing.

We should stop making perfection the enemy of good.


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But the second part gets to the issue I'm trying to focus on here. Simply extending the Protect America Act (PAA) would not have allowed this situation to go away, because there is virtually no chance that the White House would have signed off on a PAA extension that didn't include retroactive immunity.

Well, then, whose fault would it have been then if the country ended up with no functioning domestic surveillance law? Democrats would be able to argue that the White House is playing politics with the security of American citizens, and that in order to shield big money corporate honchos from responsibility for their violations, Bush was willing to shut down vital and legitimate intelligence gathering, and leave the country more vulnerable to terrorist attacks.

If Democrats voted to extend PAA, and Bush then vetoed it, how is it that Democrats would have been blamed for "letting PAA expire"? Your political calculation makes no sense at all.

Dan, that political calculation only makes sense in a country where Republicans are NOT favored by a majority of Americans on who is better able to deal with terror; and it only makes sense in a country where some Republicans are NOT willing to shamelessly demagogue on this issue.

You might be right; but that's not a risk I would be so willing to take. In the heat of a House race with 30 second negative ads I think the GOP counter argument would be far stronger. I hope one day to be wrong about that, but I don't think it's happened yet.

I will concede that you have a legitimate argument about the political necessity of this legislation. I don't think it's a slam dunk. My optimistic side thinks that if the Democrats engaged in some heavy-duty voter education between now and November, they could raise people's awareness on civil liberties issues and totally defuse this issue. But I will concede that it would be risky, and that the downside--a McCain presidency and loss of the House to the Republicans--is sufficiently bad that the risk should be avoided.

I don't think you've made a remotely persuasive case about the merits of the legislation. Neither you nor the links you provided really makes a case based on solid evidence that the incredibly broad surveillance authority which the legislation now gives to the President is a genuinely necessity to protect against future attacks. Keep in mind that the Bush Administration has been engaging in this surveillance--without any legal authority to do so--for nearly seven years. In that amount of time, if this authority were truly so necessary, they ought to have amassed numerous specific cases where they directly used this sort of surveillance to prevent terrorist attacks which could not have been stopped by any less intrusive means. Yet neither you nor anyone else can point to even one case of this sort.

I also do not share your sanguine attitude about the "oversight" provisions. Marty Lederman, who knows a lot more about the legal issues here than you, or me, makes a very good case that these provisions will be totally ineffective. As for your optimism about McCain's "respect for the rule of law," his ballistic response to Boumediene, and Matt Welch's excellent book on McCain wherein he describes the Senator's "fllippant attitude toward the constitution," would seem to suggest that you are mistaken about him.

I'd also suggest to you, Michael, that you rethink your perspective on the political process. For all your hosannas to compromise, and your disdain for "ramming legislation down the throat of Republicans," it is a fact that almost all of the important legislation in modern American history, from the New Deal reforms in the 1930's forward, has come at times when the Democrats had sufficiently large congressional majorities that they were able to more or less ignore Republican griping. The one major exception is civil rights legislation, where the opposition from racists in their own caucus meant that liberal Democrats had to make common cause with Republicans like Jacob Javits, Donald Riegle and Everett Dirksen--most of whom would be completely unwelcome in today's Republican Party.

I don't know Michael. In this case the Bush administration has already let it be known that this whole dispute was, for them, about telecom immunity. And this follows several months of an intense lobbying effort by the telecommunications industry. It seems to me they had set themselves up here for an easy attack of holding up the war on terror in order to help out some rich and powerful friends. That's the "old top-down politics" of lobbyists, money and corruption - an issue tailor made for Obama's message.

This doesn't look good for Pelosi either, given that she and her husband own stock in AT&T valued at somewhere between 250,000 and 500,000 dollars, and the epicenter of the whole dispute over telecom complicity is the AT&T Folson Street switching station in her home city of San Francisco.

We need these and other lawsuits and trials to go forward, because that's the only way we're going to come close to learning about the full scope of what has happened during this awful era. And the threat of heavy financial penalties for violators is the best way to deter future private sector collusion with rogue administrations.

Obama says he opposes the immunity portion of the bill. So lets see how hard he fights against it. To me this is a signal test of the Obama experiment. Does the new Obama model of powerful, distributed, small donor grass roots fund-raising deliver on its promise to build a new era of effective progressive politics, with progressive leaders no longer in hock to the rich and powerful, and free to act against the lobbyists and in the public interest? Or do we just get another sad, depressing lesson that money talks, and plus ça change, plus c'est la même chose.

Dan, forgive me for saying but this sort of argument infuriates me. There are lots of ways to test whether Obama's political model can deliver results, but to base that conclusion solely on this decision is too simple. There will be things about Obama you will like and not like; you have to judge them in total, not as one off examples.

Also, I believe Pelosi is a multimillionaire - so I don't 250,000-500,000 means all that much to her. Plus, she has always me a fairly principled politician.

Yes, Pelosi is one of the wealthiest members of Congress, so I agree that the AT&T stocks are a drop in the bucket to her and her husband, and it is unlikely that the financial connection is a motivator for her. And I like Pelosi, and have grown to respect her more over the past year or so. Nevertheless, the appearance is bad.

As for the rest, I don't know why it infuriates you. Sure, it's not the case that everything in the world hangs on this one issue, with the viability of the entire Obama model riding on the case of telecom immunity. But a new approach is tested from time to time, and this is a big test. If the approach fails one test or two, that doesn't show it is an utter failure. But if we get a pattern of failures of such tests, we will have something to worry about. Personally, I'm looking to see just how afraid Obama is of the telecoms. If he is able to stand strong against telecom immunity, then I will be encouraged. That will be an indication that he might also be able to take on oil traders and financial markets, the health care industry, the weapons industry and other uber-powerful private interests. If he is not able to stand firm, I will be discouraged, and wonder which will be the next public interest matter to fall victim to intense corporate pressure.

Dan, as i said in my earlier post Obama has to go along with this for fear of undercutting the House and Senate leadership. This would not only be bad form, but would really undercut Obama come January if he wins. From a political standpoint I dont think Obama has a choice - he has to work with these people. They've stuck their neck out on this one and it would be unwise for him to slam them.

With that context it's simply wrong to suggest that he is a victim of corporate pressure. Nothing is ever that simple, which of course is the point I'm trying to make.

Michael Cohen wrote: "Dan, that political calculation only makes sense in a country where Republicans are NOT favored by a majority of Americans on who is better able to deal with terror..."

Michael, that's because the Democrats haven't even tried to counter the Republicans on this issue. This vote proves that the Dems are still stuck in the 2002 mindset, and don't trust themselves, the people, and the truth. They could easily make the Republicans look terrible by saying the Republicans are using the tragedy of 9/11 to destroy the constitution, to spy on you without warrants, and to protect telcos.

MarkW wrote: "...a McCain presidency and loss of the House to the Republicans--is sufficiently bad that the risk should be avoided."

Mark, the Republicans are on the nose and the nation is ready for change. Obama has a ton of intelligence and charisma, and McCain has none. So the Democrats will win easily. Fighting against the destruction of the constitution, spying without warrants, and protecting telcos would only improve their victory margin.

I may be a wide eyed idealist but I seem to remember Obama mentioning something about the difference between preserving the status quo and doing what is right. What concerns me greatly about support of this
bill from any and all Democrats is that we may finally be turning the corner on Republican control, and that Obama, as de facto head of the party should lead said Dems into the new land of doing what is right.

Perhaps I drank too much Koolaid, but my soul aches at the thought of this compromise.

Tricia Christensen

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