It’s great that activists are going all out to lobby Congress against immunity for the telecommunications corporations’ illegal warrantless surveillance of innocent American citizens, but it is important to understand that we are likely to be sold out on this issue. In my opinion, all of this activism is probably focused in the wrong place. Here’s why:
1. The current FISA bill is only necessary because the Protect America Act of 2007 is due to sunset early next year.
2. Everyone agrees that part of the PAA2007 is necessary. Specifically, the part of the law that allows warrantless foreign to foreign surveillance even when the communication is routed through domestic channels.
3. The president has promised not to sign any reauthorization of this FISA fix if the bill does not ALSO include telecom immunity.
4. In order to keep both the fix and prevent telecom immunity, we will need a supermajority in both houses.
5. We have no prospect of getting a supermajority in both houses.
6. This leads to the obvious conclusion that we will reach a point where we have a choice of capitulating or allowing the law to sunset.
7. Pressure will be immense not to allow the law to sunset because it will cause a needless gap in NSA coverage.
Harry Reid and Nancy Pelosi will have to convince their respective caucuses to allow the law to sunset, even though that will result in a needless gap in NSA coverage that could conceivably result in missed intelligence that could have prevented a terrorist attack.
All of this activism that is focused on preventing telecom immunity is important because it helps provide incentive and courage to Democrats that are concerned about letting the law sunset for both security and political reasons. But even if we succeed in preventing telecom immunity in the FISA update, we will not avoid the president’s veto pen. And when he vetoes, we will have to let the law sunset, or all of this activism will have been for nothing.
Keep your eyes on the ball. The only way to prevent telecom immunity is to defeat it now, AND THEN LET THE LAW SUNSET.
It shouldn’t be this way. The president should not make us choose between doing all we can to keep the country safe and holding lawbreakers accountable. But that is the decision he has made. He is playing chicken with our security to cover up his crimes. And we need to realize the game. It’s easy to win, if we are willing to make the argument that I have layed out here.
