I wrote a diary earlier today called What is Dodd Doing?, where I laid out some of the procedural rules related to Sen. Dodd’s decision to put a ‘hold’ on any FISA bill that includes retroactive immunity for the telecommunications corporations. I want to follow up on that post with a more wide-ranging strategy assessment. This post is for other bloggers as much as it is for this audience. It has become clear to me that the blogosphere is really struggling to understand what is going on and I want to help.
It’s Friday night and I want to get my evening started, so I will forego the extensive linkage that I would normally include. This post will have some vagueness as a result.
Back in August, as much of the blogosphere was descending on Chicago for Yearly Kos, Congress passed a FISA bill that had serious flaws. But there were two good things about the bill. It fixed a real problem that had arose when a court ruled that the Intelligence Community (IC) needed a warrant to snoop on electronic communications between two non-U.S. citizens, neither of whom were in the United States, if their communication passed through an American hub. The FISA law never intended that and almost all Democrats agree that the problem needed to be fixed. The August bill fixed it. The second good thing was that the August bill had a six-month sunset. That means that sometime in February the law will pass out of existence. The reason that is good is because there were serious problems with other parts of the bill. The downside is that the fix we put in the bill will also sunset unless it is extended.
It is precisely the sunsetting of that fix that now represents a gun to the head of Congress. If they do not pass a new bill, the fix will go away and a very real and needless security risk will re-arise as a result.
It is somewhat of a side issue, but it has become central today, whether or not we should grant the telecommunications corporations retroactive immunity for any complicity they might have had in violating the fourth amendment by cooperating with illegal warrantless surveillance. This is the issue that led Sen. Chris Dodd to announce that he will put a ‘hold’ on any FISA bill that includes immunity.
Here are the brutal facts. The Senate Republicans will sustain a filibuster against any FISA bill that does not include immunity. And, if by some miracle the Senate passed a bill without immunity, the president would veto the bill. We know that right now.
Therefore, Senator Dodd’s insistence that no such provision be included in any FISA bill is synonymous with an insistence that no bill pass and, therefore, it is an insistence that we allow the law to sunset.
If the law sunsets we will have a needless security risk because the Fix will sunset along with the rest of the law. The question then becomes: who will get the blame for that needless security risk?
For some the answer is simple. If the Democrats offer a bill that includes the fix and the Senate Republicans filibuster it, then the fault lies squarely with the Senate Republicans. If the Senate Republicans cave but the president vetoes it, then the blame falls squarely on the president.
That may well be true. But the ugly reality is that the other side gets to make their argument too. And their argument will be compelling. They will say that we are introducing a needless security risk for the sole purpose of punishing telecommunications corporations that were only doing their patriotic duty by cooperating with the administration in keeping the country safe.
We have already seen the Washington Post editorial board say that the telecommunications corporations should be given a pass. We will have few allies in the media for our side of this argument.
Now…
Many on our side are making arguments about the way the world should be, but you can’t forge political strategy on the way the world should be. That is what Paul Wolfowitz and the neo-conservatives did with their Freedom Initiative. We have to look at the world as it is.
We will never, ever, in a 100 years, convince the Republicans to pass a FISA bill that does not include immunity for the telecommunications corporations. Bush will never sign such a law. So our options are simple and stark. We either cave in on immunity or we let the law lapse.
All efforts from the blogosphere should now be directed at convincing the Democrats to let the law lapse.
However, the strategy must be more complex. We cannot simply refuse to introduce any bill. If we refuse to introduce a bill, it will be impossible to argue that we gave the president what he wanted (a FISA fix) but that he refused to take it. We have to introduce a bill WITH THE FIX but WITHOUT IMMUNITY and force the Republicans to filibuster it (or Bush to veto it). And then we have to stand our ground and say that any resulting security risk is completely the fault of the Republicans. They will not approve the bill and we will suffer from a needless security risk. We must accept that. It’s the cost of protecting our rights.
To accomplish this we must face some uncomfortable truths. Our problem is not the Republican caucus but the Democratic caucus. They are nowhere near where we need them to be mentally to sign on to a plan that will let the FISA fix lapse. The Intelligence Committee voted 13-2 to pass a law that includes immunity. Even perhaps our most liberal senator, Sheldon Whitehouse, voted for teleco immunity. Convincing the Dems to stick their necks out and allow the FISA fix to lapse when that will cause a needless security risk is most unlikely.
And that is the situation that Harry Reid finds himself in. The base wants him to back Dodd. His caucus wants him to pass a fix, whatever the cost (we’ll fix it later). If you want to know where to point your energy, do not point it at Reid. Point it at the caucus. And support Dodd.
Dodd’s strategy will not work unless the caucus agrees to let the law lapse. It is not desirable to let the law lapse. But it is the only way we can preserve our rights.
Boo, that security flaw is not that big an issue in my opinion. Obtaining a FISA warrant is not that difficult, especially in the case of communications between foreigners that just happens to be routed through the US. FISA won’t disappear in 6 months after all, only the amendments. I think the security issue has been overhyped, because the government can still begin a wiretap and have 72 hours to obtain court approval from the FISA court. When you are talking about two foreign nationals with no connection to the US except through the telecommunications equipment located on US soil, I seriously doubt that any court would deny the government a warrant if they have any evidence at all of a possible terrorist nexus to one of the parties, no matter how slender the connecting thread might be.
The “other side’s argument” isn’t that compelling to me. The Republicans are the ones who are willing to play this so-called political game of “Russian roulette” with our national security (which as I have pointed out above is not a serious security concern in my opinion) by insisting that these amendments to the FISA law terminate unless their good friends the Telecom companies can be granted immunity for acceding to Bush’s demands for illegal and unconstitutional searches of American citizens who just happen to use their services. It isn’t the Democrats who will be supposedly putting the country at risk (if you assume the risk is real, which I do not) it will be the GOP. The question to ask, and the argument to make, is to say the following: If these FISA amendments are all that critical, why are you Republicans willing to risk our national security merely to get the Telecom companies off the hook for their possible legal liability to their customers? Why are you Republicans willing to hold the nation’s security hostage to the legal concerns of large multinational companies? Framed that way, it is easy enough to place the blame for this travesty where it belongs — on President Bush and his party.
I should add that I don’t predict that this is what the Democrats will do. I expect the Dem caucus to cave like they always do, fearful of being called nasty names by the GOP and Fox News, and unwilling to walk away from the telecom industry’s campaign contributions. But if they had any guts, and more importantly, any principles other than mere self interest, what I recommend above is the path they should take, and the argument they should make, loudly, at every opportunity they get in front of a camera or microphone.
We’ve been discussing how to properly frame issues openly through at least the last two election cycles, but you’d think it must be rocket science when you see how little it seems to have made any impact on how the caucus operates. You don’t even need that many Dems on board with the same message to get it out, just 4 or 5 forceful personalities speaking the same or simlar language.
How many times have we read the argument Dems should be making condensed into very powerful, concise language? In this case, “President Bush and the republicans in (x chamber of congress) would rather protect their wealthy telco friends than protect Americans from terrorists.” Bang. Even if the media doesn’t back you, the message is repeatedly on the record and officially a counterpoint to whatever argument the pukes are pushing.
That said, in this particular case we lost the message war long ago when it became some hot-button issue that we rearrange the FISA law to spy on foreigners without a warrant. As you’ve noted, it was no great hardship to get a warrant in such a situation–retroactively, even–but now it’s a given that we have this huge looming disaster if we don’t piss ourselves and hand the constitution to daddy GOP.
This isn’t difficult–even contempt and scorn for the base and the blogs doesn’t explain how clumsily the leadership has handled message control. Is it just a matter of telco contributions to dems? It would certainly be far from unprecedented, but still…
I wish I didn’t feel so certain that we’re at least 8 years away from having a powerful enough progressive bloc to start even having some real sway in these matters. But even the centrists must get tired of losing all the time, you’d think.
I object to the framing of the argument –
Since when does obtaining a warrant constitute “a real and needless security risk”??
Are you trying to say that the FISA court cant be trusted to keep such matter secret? If not, where is the security risk?
Timeliness? My understanding is that these warrants can be issued after the fact?
Is it a manpower issue? The agencies don’t have the people to process the paperwork? I find it hard to believe.
If none of these then there is no real security risk, and no real urgency if this matter is not fixed immediately.
What am I missing?
if nothing else, it is a manpower issue. If you want, it creates a needless paperwork requirement, and it also forces them to create probably cause grounds where that is not supposed to be legally required.
Let them DO the paperwork – I will support the hiring of an ample staff.
As far as probable cause is concerned – I don’t know what standards have to be met, but if there is NO reason to be listening to the call, the government shouldnt be listening – that applies to foreigners as well as citizens.
this 6 month sunset, and the attendant claim that it will create a needless security risk, is, politely put, a red herring. it is blatently false as there’s a clause that provides an exemption:
now if l can understand the implications of that, l am assuming that the democRATic leadership, with their legions of aides, researchers, and kennel full of policy wonks, ought to be able to. whether they choose to, or have no real intention of, modifying the bill to something that respects the 4th amendent, remains to be seen.
l am in complete agreement with letting it sunset, and point out that this provision was inserted in the original bill to prevent a security lapse…which as steven and sidewinder have pointed out is bullshit!
lTMF’sA
Taking action to stop a crappy provision that attempts to negate judicial oversight in an active lawsuit — that may just come out of the opinion that the Bush administration and the telecoms have violated the law from here to Tuesday — is a good thing.
Instead of giving in to the GOP fearmongering that we’ve been living with — damn the vetoes and GOP filibusters, by God — it’s time we stop this bullshit that it’s okay to break laws and violate our Constitutional rights in the name of anti-terrorism.
Good for Dodd. And WAKE UP, Harry Reid and party “leadership”, you craven bet-hedgers. Do the right thing.
Boo, I’d like to thank you for exposing an aspect of the debate I wasn’t privy to.
I do think, though, that the previous commenters have made a strong case that the FISA sunset is not an issue which can’t be mitigated. If Republicans want to stomp their feet, which is all they know how to do, Democrats should stand firm and say that adequate FISA mechanisms remain in place, just as Dodd is standing firm on telco immunity, which is dangerous on many levels.
http://www.cognitiveliberty.org/
Shall we establish the boundary of the human skull?
Scary.
We have already seen the Washington Post editorial board say that the telecommunications corporations should be given a pass. We will have few allies in the media for our side of this argument.
No pass should be given, they broke the law as it was. The Washington Post editorial board has it’s collective head up it’s ass. As far as allies, I’ll take the Constitution over the media any day. Ex post facto laws are prohibited in federal law by Article I, section 9 of the U.S. Constitution and in state law by section 10. Even if it is passed I expect it will be challenged.
So in effect, the congress and senate violate their oath of office. Nice.
It seems to me that the “security risk” canard is a real diversion. This has absolutely nothing whatsoever to do with security (other than the financial security of the telcos).
First, as has been mentioned, the “security risk” is, at best, a manpower issue, since FISA allows for after-the-fact warrants. But, also consider that, until very recently, these foreign-to-foreign calls did not pass through US switches. Hence, there was no opportunity to intercept them in the US, warrant or no warrant. We either intercepted them outside the US or we didn’t intercept them at all. And no one mentioned that this was a security risk.
If the Congress is unable to pass a replacement bill, the government will still have several options available to it when the Harm-America-Act sunsets. They can monitor foreign-to-foreign communications outside the US without warrants (as they did before these communications were routed through the US). Or, they can monitor foreign-to-foreign communications at US switches with warrants (including after-the-fact warrants).
Or, they can do as they have done for the past 5 years. They can monitor these communications inside the US without warrants. That is, they can simply break the law. Given the criminal nature of our government, this seems to be the most natural choice.