Will the Democratic presidential candidates adhere to their rhetoric?

As the fight over warrantless eavesdropping and telecom immunity begins this week, only Obama, Clinton and Edwards can affect the outcome. Will they?

By Glenn Greenwald
January 23, 2008 12:17AM (UTC)
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(updated below - Update II - Update III)

Time's Massimo Calabresi predicts the likely outcome of the imminent FISA and telecom immunity fight, to begin this week or next:

Congress will soon take up the far more contentious question of domestic eavesdropping. Last summer, it passed the Protect America Act (PAA), which was designed to modernize the 1978 law controlling electronic surveillance of Americans. After initially trying to block the bill, which expanded the government's ability to track suspect individuals, Democrats caved. But in a last-ditch effort to placate civil libertarians, the Democrats attached a six-month sunset on the old law. That six-month extension ends Feb. 1 and the pressure is on for a permanent fix for the 1978 law.

Democrats find themselves in the same corner they were in last summer: on the one hand their base demands they block expanded domestic spying powers for the Bush Administration; on the other, they can't risk looking soft on terrorism, especially nine months before national elections. Senate majority leader Harry Reid is angling for another month's extension of the PAA, but that would only give the Republicans a third bite at the apple in late February.

The bitterest point of contention for Democrats will be the same question that divided them last summer: immunity for telecom companies that complied with Bush Administration requests for access to American phone and e-mail traffic without warrants after 9/11. After news of the Bush program broke, civil liberties groups brought cases against the companies, and since then the telecoms have in some cases refused to help the U.S. intelligence community further. Bush has said he will veto any bill that doesn't grant the telecoms immunity. The Democrats are split on the issue. Smart money bets the Democrats will cave again -- the only question is how much they fight before doing so.

Here we have a perfect expression of the most self-destructive Democratic disease which they seem unable to cure. More than anything, they fear looking "weak." To avoid this, they "cave" and surrender and capitulate and stand for nothing. As a result, they are, as here, endlessly described in the media as "caving" and surrendering. As a result, they look (and are) weak. It's a self-destructive cycle that has no end.


As a result of all of this, Senate Republicans, despite their alleged "minority" status, are now refusing even to agree to a brief extension of the Protect America Act, believing -- with good reason -- that they can simply bully and scare the Democrats into passing a law that has everything Our Commander-in-Chief is demanding:

Intelligence and surveillance wars are going to be fought in Washington this week, and Sen. Christopher "Kit" Bond, R-Mo., vice-chairman of the Senate Intelligence Committee, is at the center. . . .

The original six-month, stop-gap measure from August expires on Feb. 1, and rumor is that the Democratic leadership wants to simply pass an extension of the August bill. But Bond and others on the committee say the Senate has had plenty of time to deal with the issue, and they're going to push for action on the October bill. "Congress will have only eight days to pass a fix before our foreign intelligence surveillance law (FISA) expires," Bond says. "To continue to stall legislation needed to help our intelligence community prevent attacks and protect American lives is irresponsible."

They're well on their way to forcing the Congress -- again -- into the most obscenely absurd posture imaginable, where they pass a major new surveillance and domestic spying bill, this time along with telecom immunity, because Republicans tell the country that unless Democrats do this, and quick, we're going to be Slaughtered by The Terrorists.

As always, conventional media wisdom is that Democrats will be harmed politically if they don't capitulate to the Big, Strong, Tough Republicans on all matters relating to national security (even though the efficacy of that fear-mongering tactic was empirically disproven in 2006). But isn't it painfully evident that a far greater liability for Democrats at this point than being "soft on terrorism" is their refusal and failure to demonstrate that they will take a stand -- any stand -- against this extremely weakened President and his discredited political party, and therefore prove they stand for something?


The only way for there to be any prospect of impeding Bush's most extreme demands for vast warrantless eavesdropping powers and immunity for lawbreaking telecoms is for the presidential candidates -- Obama, Edwards and Clinton -- to demonstrate (rather than speak about) real "leadership" and take a stand in support of Chris Dodd and his imminent filibuster. There will be campaigns beginning this week to persuade and pressure them to do so -- I will be posting extensively about them here. Any efforts to stop warrantless eavesdropping and telecom immunity is almost certain to fail without the active support of the presidential candidates, who these days have a virtual monopoly on the ability to set agendas and shape media attention.

The three leading recipients of telecom money for this election cycle are, unsurprisingly, the three sitting Senators running for President (with two Democratic members who are key to amnesty -- Jay Rockefeller and Rahm Emanuel -- close behind). That's how "Washington works" -- the process they are all pledging to battle and change. Needless to say, all of the viable GOP presidential candidates will be blindly supportive of whatever surveillance powers and lawbreaking immunity the President demands, but thus far, Obama and (less emphatically) Clinton have both claimed that they oppose such measures and thus pledged to support a Dodd-led filibuster.

But that will have meaning only if there is an active effort on their part. It will be increasingly difficult to listen to Edwards, Obama and Clinton tout their supreme leadership attributes and their commitment to "changing the way Washington works" if they choose to sit by, more or less mute, and allow such a blatant and corrupt evisceration of the rule of law -- and such a vast and permanent expansion of the limitless surveillance state -- to occur without a fight. Any one of them, or all three, has a unique opportunity to actually demonstrate with actions, rather than pretty speeches, their commitment to the principles they claim to espouse.

UPDATE: Telecom immunity entails virtually every corrupt, defining aspect of how our political system works: Telecoms have poured money into the coffers of key Senators, who then dutifully became their key advocates. Telecoms have sent a bipartisan cast of lobbyists (former government officials, of course, with incomparable access), to pressure key Senators, who swing their doors open wide for those lobbyists. And immunity is the most extremely illustration of what Sen. Obama calls "Lewis Libby Justice," as Congress passes a law with no purpose other than to protect retroactively the most well-connected private parties from the consequences of their lawbreaking.


On a different note, in his Time article, Calabresi asserts that in the wake of lawsuits against telecoms, "telecoms have in some cases refused to help the U.S. intelligence community further." I've never even heard the Bush defenders make that claim before. They typically confine themselves to the fear-mongering warning that telecoms might cut off their future cooperation if they don't get retroactive immunity, not that they have already done so. Yet here's Calabresi, asserting that with no citation to any source. Does anyone know of any basis whatsoever for that rather significant, pro-immunity talking point that made its way into this article? [In comments, EJ provides a possible answer.]

UPDATE II: Jane Hamsher has obtained an email address actively used by the top aides to the Edwards campaign, and is suggesting that everyone write to Edwards at that address and encourage him to lead on this issue. Given the likely time urgency involved, it would be very helpful for as many people as possible to do so. Jane has all the relevant information here.

UPDATE III: Anonymous Senate Democrats announce today in The New York Times that they are prepared to lose yet again to the omnipotent President -- "Senate Democrats concede that they probably lack the votes needed to stop a White House-backed plan to give immunity to phone utilities that helped the National Security Agency's eavesdropping" -- while the ACLU commendably puts the blame exactly where it belongs:

Advocates for civil liberties fault the Senate majority leader, Harry Reid of Nevada, for what they see as a weak effort to block the White House immunity plan. Mr. Reid opposes immunity, but his decision to allow an initial vote on the Intelligence Committee plan, with immunity, has angered opponents.

"If Senator Reid wanted to win, he would have put the judiciary vote on the floor first," Caroline Frederickson, director of the Washington legislative office of the American Civil Liberties Union, said. "It seems as if he wants to lose."

Sen. Reid's spokesman had the audacity to say this in response: "Senator Reid intends to do everything he can to strip immunity from the bill." The primary reason White House Victory on telecom immunity is so likely is because Reid exercised his power as Majority Leader to bring the bill to the floor in such a way as to maximize the White House's prospects. That's bad enough.


But to then send his spokesman out to claim that he's going "to do everything he can to strip immunity from the bill" makes it much worse, since that's the opposite of the truth. He's doing everything he can to ensure that immunity remains in the bill. If the Senate passes telecom immunity and vastly expanded warrantless eavesdropping powers, Bush, Cheney, ATT & and Verizon should (and, in various forms, likely will) send a hearty expression of thanks to two people: Harry Reid and Jay Rockefeller.

Glenn Greenwald

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