Friday, June 20, 2008

You Say Compromise, I Say Capitulate

You say tomato, I say tomahto. Let's call the whole thing off.

I wish I could say the same about the FISA bill. But, it appears that it's a done deal. A "bipartisan compromise" has been reached on domestic surveillance and telecom immunity reforms to the Foreign Intelligence Surveillance Act. "Bipartisan" Solution on Surveillance Unveiled.

Of course, since the White House and Republicans in Congress don't believe in compromise, all of the caving in came from the other side of the aisle -- the Dumbocrats. And, to show how bad it really is, the Republicans are gloating over the deal. As the NYTimes reports, Congress Strikes Deal to Overhaul Wiretap Law:

The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute.

“I think the White House got a better deal than even they had hoped to get,” said Senator Christopher S. Bond, Republican of Missouri, who led the negotiations.

The White House immediately endorsed the proposal, which is likely to be voted on in the House on Friday and in the Senate next week.
A NYTimes editorial rails against this so-called compromise, which is a complete capitulation by any other name, Mr. Bush v. the Bill of Rights:
The bill is not a compromise. The final details are being worked out, but all indications are that many of its provisions are both unnecessary and a threat to the Bill of Rights. The White House and the Congressional Republicans who support the bill have two real aims. They want to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.
Glenn Greenwald of Unclaimed Territory describes the constitutional carnage that is the latest on FISA, in George Bush's latest powers, courtesy of the Democratic Congress:
It's even worse than expected. When you read it, it's actually hard to believe that the Congress is about to make this into our law. Then again, this is the same Congress that abolished habeas corpus with the Military Commissions Act, and legalized George Bush's warrantless eavesdropping program with the "Protect America Act," so it shouldn't be hard to believe at all. Seeing the words in print, though, adds a new dimension to appreciating just how corrupt and repugnant this is:

The provision granting amnesty to lawbreaking telecoms, Title VIII, has the exact Orwellian title it should have: "Protection of Persons Assisting the Government."
See also, Well, That'll Show 'Em!. As the ACLU so eloquently put it, "we at the ACLU think it’s crap. And by “crap” I mean unconstitutional." See This Spade is a Spade: FISA Deal Is Bunk. The synopsis from Obsidian Wings explains it well, FISA "Compromise":
To recap: there are some minor fixes to the FISA law that everyone agrees should be adopted. The sticking point is whether companies that helped the government engage in surveillance that broke the law should receive immunity for their actions. It seems to me clear that the answer is 'no'. First, people who break the law should be held accountable. Second, we're not talking about some private citizen who might understandably have been inclined to give the government the benefit of the doubt on questions of law, but about large companies with serious legal departments. Third, since our government does not seem inclined to tell us exactly what it has been doing, discovery in these lawsuits has been about the only way in which we have found out anything at all. Shutting down these lawsuits might prevent us from ever finding out.

Most importantly, though, when the government asks someone to break the law, they hold a lot of the cards: the prestige of the Presidency, the power to exclude companies from federal contracts, and so on. Just about the only reason someone might have to say no, other than conscience, is the fear of legal liability. By immunizing these companies, we make it much more likely that the next time some President who thinks he has dictatorial powers asks a company to break the law, it will do so. And that's just wrong.
And there is no doubt that immunity would be given to the telecom industry based upon the passage of this law. David Kurtz points out that it's the embodiment of the Nixon rule -- if the President says it's legal, then it is -- which has already occurred, That's Some Compromise:
All they must do is provide a federal district court judge with "substantial evidence" they received a written request from the attorney general or head of an intelligence agency stating the president authorized the surveillance and determined it to be lawful . . . .
A few years ago in Pennsylvania, after a secret midnight congressional pay raise, the public revolted and a reformist movement, PA Clean Sweep, worked to incumbents, with much success. I believe that's what's needed on the federal level as well. Support ActBlue so we could throw all the bums out.

Finally, where is Barack Obama on this important matter? As a lawyer and constitutional law professor, he more than most understands what is at issue here. In the past, he has expressed his opposition to this resolution to the FISA matter. Yet, he now stands silent in the face of near certain passage of a seriously flawed bill. See Obama Silent as Democrats Give Bush More Spying Powers. This is not the kind of change I was hoping for.

Change, Compromise, Capitulate. Sounds like they all mean the same thing these days.

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