The strong and tough Democrats

The capitulation on FISA is as politically self-destructive as it is unconscionable on the merits.

Published August 6, 2007 10:23AM (EDT)

(updated below)

The Washington Post's Fred Hiatt has spent the last several years demanding that Democrats show their Seriousness by capitulating to most Bush "terrorism" policies. He is the type of pundit about which Democratic consultants fret so deeply when they advise their clients not to defy Bush's will. But even Hiatt sees the Democrats' weekend capitulation on FISA for exactly what it is, and expresses it clearly in a remarkably good Editorial this morning -- entitled "Warrantless Surrender":

THE DEMOCRATIC-led Congress, more concerned with protecting its political backside than with safeguarding the privacy of American citizens, left town early yesterday after caving in to administration demands that it allow warrantless surveillance of the phone calls and e-mails of American citizens, with scant judicial supervision and no reporting to Congress about how many communications are being intercepted.

To call this legislation ill-considered is to give it too much credit: It was scarcely considered at all. Instead, it was strong-armed through both chambers by an administration that seized the opportunity to write its warrantless wiretapping program into law -- or, more precisely, to write it out from under any real legal restrictions.

Administration officials, backed up by their Republican enablers in Congress, argued that they were being dangerously hamstrung in their ability to collect foreign-to-foreign communications by suspected terrorists that happen to transit through the United States. The problem is that while no serious person objects to intercepting foreign-to-foreign communications, what the administration sought -- and what it managed to obtain -- allows much more than foreign-to-foreign contacts. The government will now be free to intercept any communications believed to be from outside the United States (including from Americans overseas) that involve "foreign intelligence" -- not just terrorism. It will be able to monitor phone calls and e-mails of U.S. citizens or residents without warrants -- unless the subject is the "primary target" of the surveillance.

Instead of having the Foreign Intelligence Surveillance Act court ensure that surveillance is being done properly, with monitoring of Americans minimized, that job would be up to the attorney general and the director of national intelligence. The court's role is reduced to that of rubber stamp. . . .

Democrats could have stuck to their guns and insisted on their version. Instead, nervous about being blamed for any terrorist attack and eager to get out of town, they accepted the unacceptable. Most Democrats opposed the measure, but enough (16 in the Senate, 41 in the House) went with Republicans to allow it to pass, and the leadership enabled that result.

In the NYT, James Risen, the reporter who first revealed the existence of the NSA program, described the legislation as one which "broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants." As Hiatt also pointed out, Risen explained that "its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists," and instead, "the new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside." Risen quoted the excellent Kate Martin, director of the Center for National Security Studies in Washington, saying: "This more or less legalizes the N.S.A. program."

Prior to the November, 2006 elections, the Bush administration tried desperately to force the Congress to enact new FISA legislation to legalize warrantless eavesdropping. The Democrats resisted just enough to prevent its enactment. Karl Rove and Republicans generally then ran around the country exploiting that obstructionism in order to accuse Democrats of being "soft on terror" and "wanting to prevent the President from listening in when Osama calls," the Republicans were crushed in that election, and Democrats obtained an historic victory. In the not-blue state of Montana, Jon Tester defeated an incumbant GOP Senator by running on a platform of repealing the Patriot Act in its entirety. Wouldn't the most basic rationality compel Democrats to draw the conclusion that this rank Terrorism fear-mongering does not actually work?

Yet here they are, after refusing to legalize warrantless eavesdropping prior to their midterm victory, allowing this legislation to pass now that they are in the majority. It is as politically self-destructive as it is unconscionable on the merits.

While the premise of this behavior is that Democrats must avoid appearing "soft" and "weak," one article after the next describes their behavior as "surrendering," "capitulating," "bowing to pressure," "caving in" and "suffering defeat" -- all at the hands of a weakened, isolated and pervasively despised lame duck President whose political party is in shambles. The worst thing one can be in American politics and American culture generally is a loser, and Democrats perpetually turn themselves into losers and convince themselves when doing so that they are appearing "strong" and "tough."

What makes this all the more appalling is that it was so easily avoidable. All Democrats had to do was offer legislation to fix the only real gap in FISA and then demand that the President sign it or risk a Terrorist attack. They could have gone on the offensive ahead of time by crafting the legislation and then made it their own cause to demand that the President sign it immediately in order to fix this problem and protect us from the Terrorists.

But they did none of that. They waited around, as always, with no aim and no strategy and no principle and no belief and allowed the President to dictate their behavior and control the debate. It is exactly what they have done on every virtually major issue over the last six years -- from Iraq to the Military Commissions Act to the Alito nomination to the whole slew of still-secret surveillance programs that they meekly allow to remain undisclosed, even to them.

In the process, they gutted the few existing restrictions on the government's power to spy on us. They revitalized the GOP base which is revelling in their Victory and dispirited and infuriated their own base. They revealed themselves, yet again, as weak and principle-free as they are politically inept. And even Fred Hiatt sees all of that.

* * * * * *

I'll be on Democracy Now with Amy Goodman this morning beginning at 8:00 a.m. Station listings are here.

UPDATE: The Democracy Now segment I did this morning, along with lawyer Marjorie Cohn, is now available for viewing here (which includes a partial, soon to be full, transcript). The segment -- which I think was an excellent discussion of the political and constitutional aspects of several issues -- begins at roughly 13:10 and goes for the rest of the hour.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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