[updated below - updated again (with Sen. Dodd interview) - Update III]
It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can "demand" that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply (Meteor Blades has the list of the 16 Senate Democrats voting in favor; the House will soon follow).
I just finished a discussion panel with ACLU Executive Director Anthony Romero which was originally planned to examine his new (superb) book about the work his organization has done for years in battling the endless expansion of executive power and presidential lawbreaking. But the only issue anyone in the room really wanted to discuss -- including us -- was the outrage unfolding on Capitol Hill. And the anger was almost universally directed where it belongs: at Congressional Democrats, who increasingly bear more and more responsibility for the assaults on our constitutional liberties and unparalleled abuses of government power -- many (probably most) of which, it should always be emphasized, remain concealed rather than disclosed.
Examine virtually every Bush scandal and it increasingly bears the mark not merely of Democratic capitulation, but Democratic participation. In August of 2006, the Supreme Court finally asserted the first real limit on Bush's radical executive power theories in Hamdan, only for Congress, months later, to completely eviscerate those minimal limits -- and then go far beyond -- by enacting the grotesque Military Commissions Act with the support of substantial numbers of Democrats. What began as a covert and illegal Bush interrogation and detention program became the officially sanctioned, bipartisan policy of the United States.
Grave dangers are posed to our basic constitutional safeguards by the replacement of Sandra Day O'Connor with Sam Alito, whose elevation to the Supreme Court Congressional Democrats chose to permit. Vast abuses and criminality in surveillance remain undisclosed, uninvestigated and unimpeded because Congressional Democrats have stood meekly by while the administration refuses to disclose what it has been doing in how it spies on us. And we remain in Iraq, in direct defiance of the will of the vast majority of the country, because the Democratic Beltway establishment lacks both the courage and the desire to compel an end to that war.
And now Nancy Pelosi and Harry Reid, with revealing symbolism, cancel their scheduled appearances this morning at Yearly Kos because George Bush ordered them to remain in Washington in order to re-write and expand FISA -- a law which he has repeatedly refused to allow to be revised for years and which he has openly and proudly violated. Congressional Democrats know virtually nothing about how the Bush administration has been eavesdropping on our conversations because the administration refused to tell them and they passively accepted this state of affairs.
The intense rush to amend this legislation means that most of them have no idea what they are actually enacting -- even less of an idea than they typically have. But what they know is that George Bush and Fox News and the Beltway establishment have told them that they would be irresponsible and weak and unserious if they failed to comply with George Bush's instructions, and hence, they comply. In the American political landscape, there have been profound changes in public opinion since September of 2001. But in the Beltway, among our political and media establishment, virtually nothing has changed.
I don't have time this morning to dissect the various excesses and dangers of the new FISA amendments, though Marty Lederman and Steve Benen both do a typically thorough job in that regard. Suffice to say, craven fear, as usual, is the author of this debacle.
There are many mythologies about what are the defining beliefs and motivations of bloggers and their readers and the attendees at Yearly Kos. One of the principal myths is that it is all driven by a familiar and easily defined ideological agenda and/or a partisan attachment to the Democratic Party. That is all false.
The common, defining political principle here -- what resonates far more powerfully than any other idea -- is a fervent and passionate belief in our country's constitutional framework, the core liberties it secures, and the checks and balances it offers as a safeguard against tyrannical power. Those who fail to defend that framework, or worse, those who are passively or actively complicit in its further erosion, are all equally culpable. With each day that passes, the radicalism and extremism originally spawned in secret by the Bush presidency becomes less and less his fault and more and more the fault of those who -- having discovered what they have been doing and having been given the power to stop it -- instead acquiesce to it and, worse, enable and endorse it.
UPDATE: Much of this was undoubtedly the by-product of the Democratic Beltway consultant geniuses who insist that Democrats not resist the President's instructions on terrorism lest they look "weak." They need to look "strong," and they achieve that by giving the President what he wants and thereby generating articles like this one in The Washington Post, the first paragraph of which reports (accurately):
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 the mind of the moderate Democratic Beltway centrist consultant, that is how Democrats look Strong -- by "bowing to pressure" exerted by one of the weakest and most disliked presidents in modern history. There is nothing like being described as "bowing" and "capitulating" to give an appearance of strength.
And can we please be spared the condescending assurances about how great it is that the law has a six-month sunset provision, since -- in 6 months -- it will be exactly the same Democrats voting on whether to renew these powers and they will be intimidated by exactly the same threats that if they do not renew it and give the President all of the powers he wants, the Terrorists will kill us and it will be all the fault of the Democrats for disobeying President Bush. The cycle is just going to repeat itself 180 days from now. Why would it be different?
UPDATE II: This afternoon I interviewed Sen. Chris Dodd, who more than any other presidential candidate is attempting to make issues of executive power and constitutional encroachments the centerpiece of his campaign. I'll post the entire transcript and some commentary in a few days, but for now here is part of the discussion we had concerning last night's FISA vote in the Senate (Dodd, along with Obama and Clinton, voted against the FISA bill):
GG: Can you describe what you think it is that motivated 16 of your colleagues in the Democratic caucus to vote in favor of this bill?
CD: No, I really can't . . . We had caucuses during the day, so everyone knew what was there. You had a vote at 10:00 at night, people say I didn't know what was there, then normally I can understand, but we had a caucus during the day. There was a lot of conversation about it.
GG: So this wasn't a Patriot Act case where people can claim ignorance because there was a rushed vote? There was a careful assessment of what the terms in this statute were?
CD: Absolutely. In fact, even during the vote, Carl Levin was sitting there, and Carl said: "look, I want everyone to read this" . . . . Most people know about the Gonzales references and the 180 days -- there is also a section, as Carl pointed out, that basically says that if they can prove reasonably that you're out of the country -- not that you're not a citizen, just out of the country [then they can eavesdrop on you] . . . .
But I wish I had a better explanation. Normally after that, we would be in session Monday or Tuesday, around today, people would be talking about it. So I'm a little stunned, and grasping for some answer here. So I really don't know. . . .
GG: There is this gap in FISA, which everyone, even Russ Feingold, says needs to be filled, which is that if there is a foreign-to-foreign conversation which happens to be routed through the U.S., it requires a warrant -- so why not just say "OK, we fixed this gap and here's our bill and if you veto it, and there's a terrorist attack, then it's your responsibility"?
CD: Hello? Sounds pretty reasonable to me. But part of what this comes down to is that too many people in public life are not secure enough in their own beliefs -- feel vulnerable to attacks by people who will attack you -- and feel unwilling or unable to respond to them with clarity and conviction. And if you lack that clarity and conviction, and if you haven't been through this in the past, then you're likely to be a little weaker in the legs.
I also asked Dodd why Democrats repeatedly engage in the same self-destructive behavior -- refusing to take a hard-core principled stance against the administration, and instead capitulating just enough to look like losers, but -- despite the capitulation -- still allowing the vote to be used against them. As always (see e.g., Iraq War Authorization, warrantless eavesdropping, Military Commissions Act), they capitulate in order to prevent the vote from being used against them, even though it ends up being used against them anyway because so many of them vote (with futility) against it, but do so without ever fighting for, explaining or defending their position.
I also asked him why, when they were in the minority, the Democrats were so afraid to filibuster anything, even something as drastic as the Military Commissions Act or the Alito nomination, whereas the Republicans run around filibustering everything they can find and don't care at all about being called "obstructionist." Why are the Republicans so aggressive with using their minority tools to block all Democratic initiatives whereas Democrats failed to filibuster for years?
Dodd, by his own candid admission, has no good explanation for the Democrats' behavior, which repeats itself endlessly. He has no good explanation as to why so many of his Democratic colleagues are so deeply afraid of being attacked by one of the weakest presidents in modern American history.
Although Dodd's convictions about the constitutional issues are impressively authentic and come from a place of real passion, and although he agreed with most of the criticisms voiced regarding the timidity of Congressional Democrats, I found the interview rather dispiriting, to put it mildly. That was not due to Dodd per se, but because it is clear that Beltway Democrats have no real strategy for doing anything differently or even any real awareness that something different is necessary.
UPDATE III: The House has now also voted in favor of the FISA amendments by a vote of 227-183 (h/t EJ). A total of 41 Democrats voted in favor.