What's at stake today in the Senate's FISA filibuster vote

Are there any limits at all on the willingness of Senate Democrats to be bullied and manipulated by the White House?

Published January 28, 2008 12:00PM (EST)

(Updated below - Update II - Update III - Update IV - Update V - Update VI - Update VII - Update VIII)

Last August, the Democratic Congress amended FISA when it passed the Protect America Act because the Bush administration and Mike McConnell shrilly warned -- literally -- that the country would be attacked by The Terrorists if they didn't do so immediately. The administration insisted that without the vast new warrantless eavesdropping powers which that law provided, the entire country would be under grave threat of an imminent attack from Al Qaeda. As The Washington Post's Joby Warrick and Walter Pincus reported back then:

McConnell won the fight, extracting a key concession despite the misgivings of Democratic negotiators. Shortly after that exchange, the Bush administration leveraged Democratic acquiescence into a broader victory: congressional approval of a Republican bill that would expand surveillance powers far beyond what Democratic leaders had initially been willing to accept.

Congressional, administration and intelligence officials last week described the events leading up to the approval of this surveillance, including a remarkable series of confrontations that ended with McConnell and the White House outmaneuvering the Democratic-controlled Congress, partly by capitalizing on fresh reports of a growing terrorism threat.

"We had a forcing function," a senior administration official said, referring to the intelligence community's public report last month that said al-Qaeda poses a growing threat to the United States and to lawmakers' desire to leave town in August. "The situation was key to making it work," the official said, adding that the report's conclusions were "fortuitous" rather than engineered.

A critical moment for the Democrats came on July 24, when McConnell met in a closed session with senators from both parties to ask for urgent approval of a slimmed-down version of his bill. Armed with new details about terrorist activity and an alarming decline in U.S. eavesdropping capabilities, he argued that Congress had days, not weeks, to act.

"Everybody who heard him speak recognized the absolute, compelling necessity to move," Sen. Kit Bond (R-Mo.), vice chairman of the intelligence panel, said later of the closed session.

Democrats agreed. "At that time, the discussion changed to 'What can we do to close the gap during the August recess?'" said a senior Democratic aide who declined to be identified because the meetings were classified. As delivered by McConnell, the warnings were seen as fully credible. "He's pushing this because he thinks we're in a high-threat environment," the senior aide said.

Democrats claimed to be so embarrassed by what was, even for them, the most absurd capitulation imaginable that they immediately vowed that it would not happen again:

Yet both sides acknowledge that the administration's resurrection of virtually unchecked Cold War-era power to surveil foreign targets without warrants may be only temporary. The law expires in 180 days, and Democrats, smarting from their political defeat, have promised to alter it with new legislation to be prepared next month, when Congress returns from its recess.

So that's how the Protect America Act -- like most other laws drastically expanding the President's unchecked powers -- was born: in a climate of rank fear-mongering and exploitation of the Terrorist Threat: If you don't give the President these new extraordinary powers, we're all going to die.

* * * * *

Once the Democrats did what they were told and passed the PAA, the President "commended" them and insisted that the new law was indispensable in Keeping Us All Safe:

When our intelligence professionals have the legal tools to gather information about the intentions of our enemies, America is safer. . . . Mike McConnell, the Director of National Intelligence, has assured me that this bill gives him the most immediate tools he needs to defeat the intentions of our enemies. And so in signing this legislation today I am heartened to know that his critical work will be strengthened and we will be better armed to prevent attacks in the future.

The PAA's amendments to FISA -- but not FISA itself -- expire on February 2 and, due almost entirely to the behavior of the White House and their GOP Congressional followers, it seems unlikely that a new law can be in place by that date. On Thursday, Mitch McConnell blocked votes on all amendments, all but forcing the Democrats to filibuster today in order to prevent a final vote before those amendments can be considered. And, after refusing for months to allow House members access to any documents relating to the programs they're supposed to vote on, the White House announced last week -- just days before the PAA expires -- that they will finally allow Representatives to review tens of thousands of new documents.

As a result of these GOP-caused delays, Congressional Democrats are seeking a 30-day extension of the PAA to give them time to pass a new law in a calm and deliberate manner. But after claiming that the PAA is oh-so-vital to our ability to remain alive, the President this weekend threatened that he would veto any such extension, thus allowing this Extremely Critical Law to expire, as reported by The Politico's Mike Allen:

The White House told Democratic congressional leaders Saturday that President Bush opposes a 30-day extension of an expiring eavesdropping law and instead wants an expanded version to be passed by Friday.

"The president would veto a 30-day extension," a senior administration official said.

The administration explicitly admits that the President won't allow an extension because he wants to repeat the success of last August -- when Congressional Democrats capitulated to every Bush demand because they were told they had to act within a matter of days, i.e., before their recess, lest they cause us all to be killed by The Terrorists. "They need the heat of the current law lapsing to get this done," said a senior administration official, courteously granted anonymity by The Politico's Allen to issue these threats.

This veto threat is one of the President's most brazen acts ever, so nakedly exposing the fun and games he routinely plays with National Security Threats. After sending Mike McConnell out last August to warn that we will all die without the PAA, Bush now says that he would rather let it expire than give Congress another 30 days. He just comes right out and announces, then, that he will leave us all vulnerable to a Terrorist Attack unless he not only gets everything he wants from Congress -- all his new warrantless eavesdropping powers made permanent plus full immunity for his lawbreaking telecom partners -- but also gets it exactly when he wants it (i.e., now -- not 30 days from now).

If the Democrats had even the slightest strategic sense and/or courage -- just the slightest amount -- this is a political confrontation they would be uncontrollably eager to have. Just imagine if they sustain the filibuster today and instead pass a 30-day extension of the PAA, and then Bush vetoes it, knowingly choosing to leave the intelligence community without the ability to Listen In When Osama Is Calling. It would be the height of political stupidity for Democrats to be afraid of that outcome.

* * * * *

That's what is at stake today as Senate Democrats try to sustain a filibuster against the Republicans' efforts to force a final vote on the truly pernicious Senate Intelligence Committee bill. Are there any limits at all on the willingness of Congressional Democrats to be bullied and humiliated by Republicans, even by the most transparently disingenuous tactics such as these? FDL has the contact information for calling and faxing the Senators who appear to be key for sustaining the filibuster, and Jane Hamsher reports that -- almost certainly due to public pressure -- both Sen. Clinton and Sen. Obama are going to be present for the vote today in order to vote for the filibuster. The vote is scheduled for 4:30 p.m. EST and I'll be live-blogging the events today here.

The veto threat from the President is so unbelievably corrupt and manipulative that if our national press had even the smallest amount of critical faculties and understanding of the issues, that veto threat would be a major story. After all, how can the President possibly threaten the country that he will veto a law that he himself has claimed for months is indispensable for Protecting Us All?

But as has been true from the beginning of this scandal, reporters have been too slothful to learn the facts (or too willing to distort them), and administration officials have been easily able to convince them of all sorts of things that are patently false, which they then convey to their readers. Here, for instance, is what The Politico's Allen wrote:

The Foreign Intelligence Surveillance Act, which governs surveillance of telephone calls and e-mail traffic of suspected terrorists, expires on Friday. After that, any monitoring that's currently authorized could continue, but no new surveillance could begin.

Wow - that sounds scary. Come Friday, there's no more FISA! And no new surveillance can begin! The Congress better act and quick! I can't believe Congressional Democrats are playing games with our safety this way!

Of course, all of those statements all wrong, factually false. FISA is the law that was passed in 1977 and updated repeatedly since then, including with post-9/11 amendments that caused Bush himself, at the time, to say about the newly amended FISA: it "takes account of the new realities and dangers posed by modern terrorists" and "will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones."

FISA does not expire on Friday, contrary to Allen's gullible parroting of what his anonymous White House friend told him. It continues indefinitely even if the PAA expires. And under FISA's long-standing provisions, the Government -- just as Bush himself said back in October, 2001 -- has all the power it needs to eavesdrop on The Terrorists provided it gets a warrant from the FISA court or, in cases of emergency, within 72 hours after it begins eavesdropping.

* * * * *

It has been a long, long time since Democrats contravened orders from the White House and Senate Republicans in any way (can anyone remember the last time?) A successful filibuster today would be an extremely mild step. It would not mean that they are rejecting telecom immunity. It would not mean that they are standing against new warrantless spying on Americans. Even with a filibuster and 30-day extension, they still have plenty of time to capitulate on those issues if they want to (although, as I argued on Saturday, even a short extension could be vital in marshalling public opposition to immunity and/or expanded warrantless spying powers).

At most, a sustained filibuster today would simply mean that they are demanding the right to vote (probably with futility) on their own amendments before passing Bush's new law and demonstrating that there is at least some very weak limit on the administration's ability to bully and humiliate them with the most transparently manipulative tactics imaginable. If they filibuster, Bush will undoubtedly attack them as Soft on Terrorism in tonight's State of the Union speech, but nobody outside of David Broder, Joe Klein and the Super Tough Blue Dogs listens any more or cares about George Bush's attacks.

Any rational person has long ago given up the hope that Congressional Democrats will stand for any actual political convictions, but the most basic sense of personal pride and human dignity -- which one thought was an intrinsic part of human nature -- would preclude their capitulation today. If they don't stand up to the White House and Senate Republicans under these circumstances, one might as well accept that they never will do so.

UPDATE: As is so often true, the factual falsehoods from the establishment press (here, The Politico's Allen) have their roots in propaganda from the right-wing noise machine. From Human Events's Jed Babbin (h/t sysprog):

One week from today, the Foreign Intelligence Surveillance Act (FISA) will expire unless Congress passes a new version that President Bush is willing to sign. If it expires, our intelligence gatherers here and abroad will be rendered blind and deaf because the legality of their operations will be put in limbo.

That is just flat-out false. But no matter: from the right-wing sewer out of the mouth of the establishment press. Here's an email I sent to Mike Allen this morning:

SUBJECT: Correction Needed

Hey Mike - In your otherwise informative FISA article from over the weekend, there is a very significant and clear factual error. You say:

"The Foreign Intelligence Surveillance Act, which governs surveillance of telephone calls and e-mail traffic of suspected terrorists, expires on Friday. After that, any monitoring that's currently authorized could continue, but no new surveillance could begin."

This is fear-mongering propaganda from the White House but it is factually false.

FISA does not expire on Friday. Only the Protect America Act, which amended FISA by increasing the President's powers, expires.

FISA -- which was passed in 1977 and amended multiple times since, including after 9/11 -- continues in full force and effect even if the PAA expires. This is what President Bush said about FISA after it was amended in 2001:

it "takes account of the new realities and dangers posed by modern terrorists" and "will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones."

This is critical because even if the PAA expires, the Government -- contrary to what you reported -- is still fully empowered to eavesdrop under FISA, and that includes new surveillance.

I presume you got this information from a White House source but it is undebatably wrong.

We'll see if a correction is forthcoming.

UPDATE II: Allen's response, via email:

Thank you for reading, and writing. You're right, as always. As the piece explains: "In August, Bush signed a temporary modernization of FISA, called the Protect America Act, written to expire Feb. 1." FISA exists in perpetuity --- it's the "enhancements" that were temporary.

The White House wants to lock them in, while many lawmakers want to reexamine them -- the reason it had a sunset. One problem: The House Intell committee says its asked for documents to use in that process eight months ago, but didn't get access to them until last week.

Thank you again for checking and for your lively and illuminating work.

Clearly, the sentence he quoted doesn't render the prior false statement accurate, but that's his response.

This is a vital point because if Democrats do filibuster today (and there are some preliminary indications that they actually might pull it off), and if they then pass a 30-day extension which is vetoed by the President, then there will be all sorts of false claims spewing forth about how Congress let "FISA expire" and therefore there can be no new eavesdropping when Osama Calls In. It's important now to expose that as the patent falsehood that it is.

UPDATE III: Look at how quickly and seamlessly absolute falsehoods proliferate in the establishment press. From The Washington Post yesterday (h/t Akwlib):

Aye to Spy? This afternoon, the Senate will vote on whether to cut off debate about reauthorizing the Foreign Intelligence Surveillance Act. . . . The current FISA authorization will expire on Friday, and Bush warned Congress not to try sending him another temporary extension.

Just as most of the press falsely depicted the NSA scandal from the beginning as whether we should eavesdrop on The Terrorists (rather than whether we should let the President eavesdrop on Americans with or without judicial oversight and warrants), now they're depicting the current debate as whether FISA should be allowed to expire -- as though Congressional Democrats are about to remove altogether the government's eavesdropping powers. It's just not possible to know the most basic facts about any of this and describe it that way.

UPDATE IV: Hillary Clinton's FISA statement is here. She's supporting Dodd's filibuster and also now co-sponsoring his amendment to strip the bill of telecom immunity. I can guarantee you that that is a direct result of the pressure exerted by blog readers and others.

The latest indication is that Democrats will successfully block cloture on the bill today -- and thus proceed to debate and vote on the rest of the amendments -- but will fail to get the votes for a 30-day extension. That is a very strange combination, since it will almost certainly put the House in the extremely untenable position of either: (a) passing a bill in a day that is identical to what will be the terrible bill passed by the Senate (i.e., with immunity and warrantless eavesdropping) or (b) allowing the FISA "fixes" to expire with no veto and thus be blamed for that.

That is the same manipulative series of events that happened last August -- when the Senate hastily passed a terrible bill (the Protect America Act) and thus left the House one day either to pass the same terrible bill or allow the recess to occur with no bill at all. If the Senate passes a bill only after the amendments are debated but does not extend the deadline, it will give the House a day or two at most to decide what to do.

UPDATE V: Like Clinton, Obama is also now slowly stepping up to the plate. He is going to support the filibuster today, and also has announced that he will vote in favor of the 30-day extension despite Bush's veto threat. No word yet on Clinton's position on the 30-day extension.

UPDATE VI: For those interested, I'll be talking about the latest FISA developments on Air America with Sam Seder this afternoon at 3:15 p.m. EST (listings and live feed here), and on Democracy Now with Amy Goodman tomorrow morning during the 8:00 a.m. EST hour (listings and live feed here).

UPDATE VII: The FISA debate has begun in the Senate and can be watched on C-SPAN here. Arlen Specter is speaking now and has indicated he will vote against cloture -- i.e., in favor of the Democratic filibuster -- because he wants a vote on his amendment to allow the telecom lawsuits to continue, but with the U.S. Government substituted as defendants for the telecoms (co-sponsored with Sen. Whitehouse). That Specter is voting against cloture is a strong indication that the Democratic filibuster will be sustained.

UPDATE VIII: I am live-blogging the proceedings in the Senate in a new post, here.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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