It's worth taking a second to ponder the significance of FISA from perspectives other than the primary focus of privacy and the rule of law. Those are obvious, but there's much more going on with FISA. It is kind of akin to Bill Kristol's famous memo against UHC in 1993. He knew that defeating UHC was more important to conservatives for the underlying power-structure and zeitgeist reasons than for the primary features of the issue itself. It was a tacit admission that the Democratic plan would have worked. Conservatives don't actually want the poor and middle class to die of treatable illnesses, but they don't want them to get treatment if it means revitalizing internventionist government and so forth. So 15 years on, the US has a morally reprehensible private health care system that purposely lets sick people die, but Bill Kristol has a great job in the NY Times of all places. While the line of causation between those two things is indirect, I can certainly imagine an alternate reality where the Clinton health plan succeeded and in that world, Bill Kristol is not working for the New York Times.
I'm going to argue, that aside from the specific security and privacy issues in direct play, the FISA issue is particularly important to the goal of building a governing progressive majority. Below I will discuss the factors that contribute to FISA being an important structural and morale issue at this juncture.
1) It's black and white. The progressive position is just unambiguously correct and the conservative one, mendacious, ill conceived, self-serving and utterly transparent to anyone paying attention. This is important because having a clear right and wrong answer to an issue makes it much easier to align on. I know many conservative positions are equally nonsensical as the FISA one (global warming, torture, evolution, church-state separation and abstinence education to name but a few) but this isn't always so, and for issues where there is the slightest possibility that the conservative position could be correct, many feel inclined to give them the benefit of the doubt for being sincere, while other progressives may genuinely feel ambiguity if the issue is complex and unclear enough. Immunity is a no-brainer dumb idea and all the arguments for it are ludicrous.
|2) It's a fight we can win, because we have the right tools. Namely, we have a majority in the US House of Representatives, which is the elected organ of government least stacked against progressives. After 4 years of complete Republican dominance of the organs of government, and more than enough conservative Democrats in the Senate to preclude use of the filibuster in protection of progressive aims, we finally have a finger hold on a single chamber to at least block regressive laws (though not enact progressive ones). Further, the House is the place where netroots focus and energy has the most impact. We can sometimes move certain senators, but rarely enough to make decisive change to the Senate (like Dodd's failed FISA and Kerry's failed Alito filibusters), whereas in the House the Progressive caucus can actually get stuff done, like blocking bills or passing them. It's no use being right as per point number 1 if you can't do anything about it. We're not tilting at windmills here.
3) No one else notices or seems to care. This fight is just us and the civil liberties NGOs against the telcos, the Republican party and the corporate Democratic caucus. The media largely don't care, the public has not really been involved seriously. Obama is on the right side, but not nearly vocal enough and McCain is wrong about this, but mostly quietly wrong. People in general should care, but for whatever reason, they don't or don't know about this issue to care. Obviously the lack of much media attention to this is a good part of why, but I don't want to get too far into analyzing why this is so, just to note it is so. We have the reach we have, and were so far big enough to chide just enough elected Democrats to find some spine and do the right thing (so far). The other thing about fighting a bear alone in the woods, is that if you do the unlikely, and win, you know you did it by yourself. If the media, nominees and public were deeply involved in this issue, it would be difficult to ascertain what impact the netroots had, much like in the Presidential race to come. So far the bear hasn't won, and it's only us holding him off. I'd rather we had help, but since we don't it gives us a real life experiment to measure our influence.
3) b) It's Us versus the Telco lobby. This is hardly our only fight with the Telco lobby, so flexing our muscle, and winning against them is critical.
4) It's a National Security Issue. Republicans' supposedly strongest ground and thus doubly important for us to beat them on it there. Winning fights on health care or the economy does not have the same viceral impact as beating Republicans soundly on an issue of National Security. Combine this with #1 again and the salience grows. The Republican party is not just wrong on some scientific, economical or health policy issue: they're wrong about protecting America from harm. So, having failed to end the Iraq debacle, or even prevent the escalation, it is a not insignificant consolation prize to beat them on this, and start to build the Democratic party into an institution capable of rejecting conservative security policies regularly. We will have to win a major policy fight on National Security some day if we are ever going to stop the Military Industrial Complex. While this fight won't reduce the Pentagon budget to a reasonable size (something less than 50% of all global military spending, say), every avalanche needs a pebble falling somewhere.
5) It's the only big win so far. While the Democratic congress has been far from useless (really), and many people are measurably better off for them being in power versus the Republicans, this is the only time they surprised us by doing the right thing in the face of Bush and the Serious national security people. It would be really disheartening to see them back down and grant immunity after going this far. Better to have done it months ago if that was the intent. The netroots has been right about this issue not just on its merits, but in terms of the electoral impact. Voters either don't know/care, or prefer the progressive position. There is no electoral reason to give in on this.
6) It really sets up for a true accountability moment. Failing to obtain immunity will greatly increase the likelihood that we will find out what the Bush administration actually did in terms of domestic spying, from their conspiracy partners. I think the extent to which the right has fought to obtain this immunity goes to show how risky they view the prospect of normal courts taking on these cases. This is where something like Kucinich's impeachment effort would not be DOA. Even if it happens after Bush leaves office, we could see actual prosecutions come out of this. I'm not holding my breath, but if it's ever going to happen, something like finding out the Bush administration captured every email and text message in America since 2003 or something could do it.
This isn't just an issue isolated to its own merits. Bill Kristol's memo betrayed the cynicism and moral bankruptcy of the conservative opposition to UHC. For them, they didn't give a shit if or how the poor and middle class got health care, except that it would cost them power. Well we do care about the issue on its own merits. The Church committee and Watergate long ago convincingly demonstrated that unfettered power to spy domestically is inherently prone to inevitable abuses for domestic political gain in the name of national security. But there is more going on here, and I hope Steny Hoyer, Nancy Pelosi and Barack Obama can recognize that.