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.