An Alternative Left-Right Strategy to Stop Warrantless Wiretapping

by: David Sirota

Wed Aug 08, 2007 at 07:00

This is the third in the regular series called Strategery, which is written by David Sirota and appears every other Wednesday on OpenLeft.

Democrats' capitulation to the White House on the issue of warrantless wiretapping was a move designed to make them look "tough" but which ended up making them look pathetically weak. The Washington Post's lede frames it best: "The Senate bowed to White House pressure last night and passed a Republican plan for overhauling the federal government's terrorist surveillance laws, approving changes that would temporarily give U.S. spy agencies expanded power to eavesdrop on foreign suspects without a court order." In other words, Senate Democrats got muscled by the most unpopular president in contemporary American politics - and they got muscled into using their congressional majority to pass the minority party's offensive proposal. This said, they still have a chance to fix things and regain an image of strength - but only if they now follow a high-profile alternative strategy.

David Sirota :: An Alternative Left-Right Strategy to Stop Warrantless Wiretapping
Note the Library of Congress's website showing that while almost all of the 2008 appropriations bills funding the government have already passed the House, they are still awaiting Senate votes, and are further awaiting House-Senate conference committee votes. Any Senator can offer a floor amendment to the Defense Appropriations Bill or the Commerce/Justice/State Appropriations Bill banning the use of government funds for warrantless wiretaps. Similarly, any House or Senate lawmaker on the Appropriations Committee can offer an amendment in these bills' conference committees to do the same thing. If such an amendment became law, the warrantless wiretapping program may still remain technically "authorized" by Congress (though unconstitutional, of course), but the White House would be prohibited from actually using it.

This was precisely the strategy then-Rep. Bernie Sanders (I-VT) employed in passing legislation aimed at limiting the Patriot Act. Building a left-right coalition of progressives and libertarian conservatives like then-Rep. Butch Otter (R-ID), he used the Appropriations process - and the rules that allow such riders to be attached to spending bills - to pass his legislation through the Republican-controlled House. Back then, the Republicans used the murky conference committee arena to strip the legislation out of the final bill - but now that Democrats control the conference committee, it would seem that they would have a far harder time doing the same thing to an appropriations rider preventing the Bush administration from violating Americans' constitutional rights.

Undoubtedly, short-sighted, self-declared political "gurus" like Sen. Chuck Schumer (D-NY) would likely oppose such a high-profile move in the same way he embarrassed himself by citing his "red state" candidates as the reason he pushed for reauthorization of the Patriot Act - even though many key "red state" candidates were actually campaigning against the Patriot Act in order to win over libertarian-leaning voters. Schumer displayed a shortsightedness that many Democratic "strategists" cloistered in Washington are afflicted with. They have never understood how to build left-right coalitions, why they are politically valuable, or how to really look strong on national security issues. They operate with the wholly outdated view that Americans automatically equate support for the Iraq War and unconstitutional presidential power grabs as "strength." (Note: Schumer did vote against this latest bill - perhaps he's learned something).

But whereas Democrats have sadly been too afraid to use Congress's power of the purse to stop the War in Iraq, they shouldn't be too afraid to use that power to protect Americans' freedoms. We know for a fact that the FISA courts already have extraordinary tools to process warrant requests (there is even a process to approve them retroactively so as to prevent federal agents from losing precious time in the hunt for terrorists). We know, in other words, that Congress passing an appropriations amendment like the one I've described would merely force the Bush administration to follow a law that does nothing to hurt our national security, and everything to protect our freedoms.

The beauty of this strategy, of course, is that it is available to individual Democrats who are unhappy with how their party's leadership is addressing the issue. Because appropriations bills are brought to the floor under open rules, any lawmaker can offer this amendment. Same thing within the Appropriations Committees themselves. Any appropriator can bring up such an amendment in conference committee.

Additionally, this is a legislative path designed to build momentum. Instead of single random votes like we saw last week right at the end of the session, appropriations bills come along at set times throughout the year. If this defunding amendment doesn't pass Congress this time, lawmakers can try to tack it on to appropriations bills next year...and the year after...and the year after. Each vote starts from where the last vote left off, adding more and more support, pressuring more and more libertarian-leaning conservatives to support it.

I'm not saying that's ideal. I hope the Democratic leadership comes to its senses and refuses to reauthorize the entire warrantless wiretapping program. But if that doesn't happen because Democrats yet again come down with a case of Autoshadowphobia on national security issues, this strategy gives us an alternative to build off of.

So, now's the time to ask: Which House and/or Senate Democrats is going to pick up this strategy and run with it?

UPDATE: For those wondering which House or Senate lawmakers would be most likely to pick up this strategy and run with it, take a look at the House and Senate Roll Call votes. The lawmakers voting "nay" are the ones we should be asking to offer the defunding amendment.

UPDATE II: Kagro X has noted that Rep. Jack Murtha (D-PA) has included appropriations riders on this subject before, but that Bush has ignored them through a signing statement. However, the riders Murtha wrote were extremely broad - prohibiting the use of funds for unconstitutional behavior. Bush easily argued that this program is constitutional as a justification for ignoring the legislation. These amendments, therefore, have to be much, much tighter. They have to focus like a laser on the specific program and appropriations line-items in question so as to make sure there is no wiggle room.

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Murtha alredy did this. (4.00 / 1)
Not that it can't be improved upon, but Jack Murtha put this provision in the FY05 and 06 DOD Appropriations bills:
None of the funds provided in this Act shall be available for integration of foreign intelligence information unless the information has been lawfully collected and processed during the conduct of authorized foreign intelligence activities: Provided, That information pertaining to United States persons shall only be handled in accordance with protections provided in the Fourth Amendment of the United States Constitution as implemented through Executive Order No. 12333.

Both bills drew the same signing statement from Bush. This one on August 5, 2004:

Also, the executive branch shall construe section 8124, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

And this one on December 20, 2005:

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch.

This is not to say that a more coherent strategy for publicizing the defunding could not be worked out, particularly now that Democrats are in the majority. But it should also be noted that Bush has already threatened to veto DOD Appropriations (and 9 other appropriations bills), so he'll most certainly delight in adding the defunding of his spying programs to the list of his reasons for doing so.

Should we do it anyway, if for no other reason than to draw attention to it? Absolutely. Is it likely to be any more effective than the previous attempts, or the "defunding" of the Total Information Awareness program, which by all accounts was divided up into component parts, renamed, and survived the axe? Probably not.

But purely as strategy, it's worth considering. Tightening the language is, as David notes, a must. Even though we are all fairly certain Bush will use any and all means at his disposal to circumvent such provisions, there's great value in flushing him out and forcing him to do so in the full view of an opposition Congress.

Operators vs. Legislators vs. the Executive (0.00 / 0)
Let's stipulate something:  Dick and Dubya don't wiretap phones.  They eat their dinners and issue orders.  They issue their orders to people like Gonzo and McConnell, who promulgate them to department heads, who pass them down to section chiefs, and so on, until finally specific instructions to tap a particular phone reach an individual "operator".

Now, it defies belief that the actual human beings (tech-savvy geeks, one assumes) who actually operate the equipment are all blindly loyal Bushies.  Maybe they are sufficiently robot-like to erase their memories of anything they read in the newspaper before punching in to work for the day.  Maybe when their immediate superior in the bureaucracy says "Tap that line over there" they don't ask whether the order comports with the Constitution, the law, or even a Presidential signing statement.  The whole point of a hierarchy is that the poor slob at the bottom who is just earning his living _shouldn't_ answer to anyone but his immediate boss.  Still, those operators _must_ be aware of the controversy.

It is quite possibly seditious to suggest that Congress should address the operators directly, through the media.  But that's what I want to see.  I want Pelosi, Reid, and other high-profile Dems to say publicly: "Ladies and gentlemen of the NSA, remember that you are Americans.  If you are given orders to violate a fellow American's civil liberties, blow the whistle.  We'll have your back." 

-- TP

We Attack Faster than Republicans (0.00 / 0)
I still don't understand why we in the netroots are so fast to attack the Democrats. Yes most of us are Republicans. But often I think we are as black/white as the Neocons. A lot of these decisions are nuanced and have reasons behind them.

Do we really think we are helping our cause by beating up on the Dems as hard as Republicans? Sirota--if your background was not as extensive as it is, I often would think you were a Repbulican plant!

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