Monday, January 28, 2008

A Fix for FISA?

The President says that without the changes to FISA that he wants (demands), the country will be a grave risk, yet he's planning to veto an extension of the Act. Likewise, telecommunication companies are a vital link to the process and need retroactive immunity, yet they were willing to pull the plug on wiretapping when the government failed to pay their bills. So, if you get the idea that the latest FISA dust-up is a lot of dust to disguise the real motive -- secrecy over the violations of our civil liberties that have already occurred and immunity to ensure that they'll never be uncovered (or prosecuted) -- you might be right.

A NYTimes editorial sums it up, The FISA Follies, Redux:

The Senate (reportedly still under Democratic control) seems determined to help President Bush violate Americans’ civil liberties and undermine the constitutional separation of powers. Majority Leader Harry Reid is supporting White House-backed legislation that would expand the administration’s ability to spy on Americans without court supervision and ensure that the country never learns the full extent of Mr. Bush’s illegal wiretapping program.

The 1978 Foreign Intelligence Surveillance Act, or FISA — which Mr. Bush decided to ignore after 9/11 — requires a warrant to intercept telephone calls and e-mail messages between people in the United States and people abroad.

It needed updating to keep pace with technology, and the technical fixes were included in a bill that Congress passed last summer. The problem was that Mr. Bush managed to add measures that sharply undercut the court’s role in monitoring eavesdropping. Fortunately, lawmakers gave them an expiration date of Feb. 1.

The House has passed a reasonable new bill — fixing FISA without further endangering civil liberties. But Mr. Bush wants to weaken FISA as much as he can. And the Senate leadership has been only too happy to oblige.

* * * *
Mr. Bush says without amnesty, the government won’t get cooperation in the future. We don’t buy it. The real aim is to make sure the full story of the illegal wiretapping never comes out in court.
* * * *
Lawmakers and the rest of the nation should bear this in mind: Mr. Bush’s version of this law does not make intelligence-gathering more robust. Opponents like Senators Christopher Dodd and Patrick Leahy want to spy on Al Qaeda, too. They’re just not willing to do it in a way that undermines the very democracy that the spies, Congress and the president are supposed to be protecting.
Like the Americans who have been deported or gotten caught up in immigration sweeps, see Born in the U.S.A., don't think it can't happen to you. See FISA: Wiretapping Without A Warrant. It Could Be You Next. These are the people who lied us into a war. A little spying ain't nothing.

The only reason Bush hasn't gotten his way so far is because of Chris Dodd, who has held firm in his commitment to block this bill. Glen Greenwald explains the significance in his Salon blog, More disruptions to the Cheney/Rockefeller plan:

Dodd has been in the Senate for 24 years. As he is the first to acknowledge, engaging in filibusters and obstruction and defiance of his party's leadership are things he has almost never done. Dodd isn't Russ Feingold. He has been the picture of the establishment Senator in the party's "liberal" wing, rarely deviating and almost never standing alone to oppose the party leadership. So what has changed? Why has he been so willing so tenaciously to pursue this fight -- even in the face of overt though anonymous threats that he could alienate his party's leadership and lose influence as Banking Committee Chairman if he persists?

Dodd himself provided the answer in his Senate floor speech (h/t Kitt):

I've promised to fight those scare tactics with all the power any one senator can muster. And I'm here today to keep that promise.

For several months now, I've listened to the building frustration over this immunity and this administration's campaign of lawlessness. I've seen it in person, in mail, online -- the passion and eloquence of citizens who are just fed up. They've inspired me more than they know.

That is exactly what happened. When the administration first demanded retroactive immunity in the wake of the passage of the Protect America Act, nobody was talking about that issue outside of blogs and grass-roots and civil liberties organizations -- the roster of annoying citizen-groups that are typically ignored. But the pressure built; it became increasingly intense and relentless; it found a political official in Chris Dodd willing to ride it; and it unquestionably has altered the course of how all of this has played out.
And the irony is that the Democrats would have caved on the issue, but the Bush Administration decided to hold off letting them acquiesce so that it could blast the Democrats at the SOTU address tonight for being soft. Notwithstanding that irony, the ultimate significance of Dowd's stand is this:
But what incidents such as this one conclusively demonstrate is that it is always possible, if enough citizen intensity is mustered and the right strategy is formulated, for citizens to disrupt and defeat the best-laid plans of our corrupt political establishment. There's a comfort and temptation in denying that truth. Those who insist that defeat is inevitable and All is Lost are relieved of the burdensome task of trying. But defeat occurs because the right strategy isn't found, not because it is inevitable.
And finally, this is why John Edwards needs to stay in the race. He's the only candidate addressing the FISA issue:

When it comes to protecting the rule of law, words are not enough. We need action.

It’s wrong for your government to spy on you. That’s why I’m asking you to join me today in calling on Senate Democrats to filibuster revisions to the Foreign Intelligence Surveillance Act (FISA) that would give “retroactive immunity” to the giant telecom companies for their role in aiding George W. Bush’s illegal eavesdropping on American citizens.

John Edwards '08 Blog

Who knows if we'll be successful in trying to preserve the Constitutional protections. There are too many wussy Democrats in Congress to count on them to do the right thing. Yet, hope is sometimes all there is. And sometimes it works, as Greenwald notes:

Even just a two-week or one-month extension will allow more time to marshall the opposition to telecom immunity and a new FISA bill and to do what's possible to encourage the House to stand firm behind their bill -- in exactly the way that the Dodd Delay in December prevented quick and easy resolution. The longer this drags on without resolution, the more possible it is to push the opposition to a tipping point, and sometimes unexpected developments or even some luck (such as McConnell's overplaying his hand on Thursday) can prevent it all from happening.

As the events of the last two months demonstrate, if citizen opposition is channeled the right way, it can make a genuine difference in affecting the course of events in Washington. Defeating telecom immunity will keep alive the lawsuits that will almost certainly reveal to some extent what the Government did in illegally spying on Americans over the last six years or, at the very least, produce a judicial adjudication as to its illegality. And, in turn, the effects from that could be extremely significant. Because victories are so rare, it's easy to get lulled into believing that none of these campaigns are ever effective and that citizens can never affect any of it, which is precisely why it's so important to remind ourselves periodically of how untrue that proposition is.

UPDATE (and post edited): Apparently, Senator's Clinton & Obama now plan to attend today's Senate session to vote no on cloture. I guess a little dust-up every once in a while is needed to clear the air and see what's happening. See TPM, Today's Must Read, for more details on the status of the legislation.

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