FISA Cave-In Imminent

by: Daniel De Groot

Fri Jun 13, 2008 at 19:13

Not looking good:

House and Senate negotiators are on the verge of striking an accord on a contentious overhaul of the 1978 Foreign Intelligence Surveillance Act (FISA), several aides said Friday.

The development comes after a Thursday meeting with Senate Intelligence Committee Vice Chairman Kit Bond (R-Mo.), House Majority Leader Steny Hoyer (D-Md.), House Minority Whip Roy Blunt (R-Mo.), Senate Intelligence Committee Chairman Jay Rockefeller (D-W.Va.) and Bush administration officials, according to two aides.

Even assuming that Hoyer was strongly opposed to immunity (a dubious assumption), being the only one in that crowd is not likely to lead to a no-immunity outcome.

The game is clearly to provide de facto immunity without spelling it out explicitly in a de jure manner.  That's actually a victory of sorts, since Republicans put great stock in not just winning on issues, but ritual humiliation of Democrats.

The Hill, CQ and FireDogLake will spell it out inside...

Daniel De Groot :: FISA Cave-In Imminent
The Hill (link ibid):

The proposed agreement would give federal district courts the authority to review whether civil liability protections should be afforded to those companies that received orders from the administration to wiretap phones after Sept. 11, 2001, aides said Friday.

(After Sept 11? hmm...what if the wiretapping was before that?)

CQ Politics has a glimmer of hope:

Sources said the major change is that a federal district court, not the secret FISA court itself, would make an assessment about whether to provide retroactive legal immunity to telecommunications companies being sued for their alleged role in the Bush administration's warrantless surveillance program.

It was not immediately clear, however, what standard the court would use to determine whether retroactive legal immunity was justified. If that standard is too low, civil liberties advocates maintain, the law will have been written so that companies are almost assured of being granted immunity, and any claim of court scrutiny is a mirage. One source said the court would review whether there was "substantial evidence" that the companies had received assurances from the government that the administration's program was legal.

Reading between the lines, the two assigned leakers didn't tell CQ the same thing.  The optimistic case is that the Democrats and Republicans came away from that meeting thinking they agreed, but actually having different positions.  Unlikely.  More likely the one source garbled the message or something.

So, though I noted that this avoided the ritual humiliation aspect of giving the Republicans exactly what they demanded from the start, it does give them substantively what they wanted:  If the Government told these companies the spying was legal, then the Courts will be instructed to find it so.

That's the essence of the blind authoritarianism embraced by the right.  For all that they rail about the "nanny state" it's not us who merely take the President's word that his orders are always legal, or as another famous authoritarian said:

"When the president does it, that means that it is not illegal."

What's more, when a Judge actually does dismiss lawsuits under this rationale, Republicans will then use that as precedent to claim warrantless wiretapping is in fact constitutional. After all, lawsuits opposing it will have been dismissed!

This is important.  FISA is perhaps the single bright shining star of this Congress in the form of actually opposing, and (temporarily) halting the Republican/Beltway conventional wisdom national security consensus that has screwed shit up so very badly since JFK died.  

Christie at FDL gives another nugget of hope, that the players here may have overplayed their hands:

What I'm hearing is that Hoyer and Kit Bond want debate to begin in the Senate next week...but I heard from another source that they didn't bother going through the leadership channels to set this up before they started pushing it. Potentially a big mistake in the land of egos.

Especially since Hoyer, Bond and Rockefeller appear to be going behind the backs of both Pat Leahy and John Conyers -- cutting both Judiciary Committee chairs out of the discussions altogether in a massive turf refutation. Talk about trying to cut the legal legs out from underneath a civil liberties question. Will Leahy and Conyers allow themselves to be gelded this way?

Both Leahy and Conyers have been among the strongest Democrats this congress, and Leahy in particular did, (after some weird committee manoeuvring I don't get) ensure the SJC reported an immunity-free version of the bill.  

Still, unless the Foster victory in Illinois changed the political landscape more than I gather, this is a done deal in the Senate.  Dodd and Feingold and the decent 30 Senate Dems might vote to filibuster, but it won't be enough.  Stopping it in the House is probably our only shot.

Unless of course, the presumptive nominee of the Democratic Party for the Presidency were to speak up and quash this.  He has good historical (and rhetorical) reason to draw on actually, as BlackState points out:

The FISA act was implemented after the Church Committee hearing of the late 1970's which exposed America to the criminal actions of the FBI, CIA and NSA in its counter intelligence activities within the United States during the 1960's and 1970's, infiltrating and spying on Civil Rights organizations, such as SNCC, Black Panthers, the Nation of Islam and anti-War organizations.

They don't include him, but Martin Luther King qualifies to be on that list of victims of illegal and harassing government spying in the name of "security."  The very law passed to prevent such abuses is about to be gutted under Obama's watch.    Stopping that would be change I could believe in.

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dump Steny (4.00 / 2)
we need a dump Steny as caucus leader. I know that seem impossible now, but after a few months of drumming on it, things may change.

we really need to punish constitutional sell outs.

Pelosi? (0.00 / 0)
I find it hard to believe Hoyer is acting without Pelosi's tacit approval.  And if he is operating outside her boundaries on this issue, that's a Pelosi problem too...

Self-refuting Christine O'Donnell is proof monkeys are still evolving into humans

[ Parent ]
Structural Dysfunction (0.00 / 0)
We seem to have a political system where, if Democrats let the Republicans get their way, things get really bad and the public votes in more Democrats to clean up the mess.

In other words, Democrats are rewarded for failure (and punished for success, as in 1994 after fixing the deficit).  And we wonder why they keep screwing up?

Seems like the only solution is enough primary challenges that they fear us more than they fear the ohter side.  Sadly, our record, in both quantity and victories, is not good.

It's because (4.00 / 1)
The organs of the US government that set foreign and defence policy are the ones stacked purposely to be conservative.  Mostly the Senate, which has most of the foreign policy trump cards.

We're trying a drive a car that veers right (into the ditch) unless we keep two hands on the wheel.

[ Parent ]
This is (another) chance for Obama to stand up (4.00 / 1)
One of the central themes of Obama's campaign is to deeply curtail the power of special interests and lobbyists.  Here's a chance to back that up.  This bill, more than any other, shows how deeply entrenched corporate power is in a Democratic Congress.  That retroactive immunity, defeated 3 times now, keeps coming back stronger each time is a testament to the determined will of the telecom companies, and the tenacity of their stooges in Congress to do their bidding.  This just will not die.  It can, if Obama steps up and holds Democrats like Rockefeller and Hoyer accountable for selling out the rule of law.

Take a stand here, Barack.  I've lambasted Obama several times throughout the campaign for failing to lead on this issue.  The people don't support immunity for telecoms.  This is not politically risky.  In fact, it's entirely in keeping with his campaign themes.

I am not holding my breath (0.00 / 0)
He has had a lot of opportunities to stand up on this issue.

Don't count on Obama to save us from this bad FISA bill. He won't want to give the Republicans an "excuse" to say he is weak on terrorism.

Join the Iowa progressive community at Bleeding Heartland.

[ Parent ]

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