Exclusive capitulation report: House Democratic leadership circulates FISA bill

After weeks of pretending to stand against the president's demands, the House today is circulating a bill to give Bush everything he demanded.


Glenn Greenwald
March 8, 2008 12:39AM (UTC)

(updated below - Update II - Update III)

As has been expected for a week now, the House Democratic leadership has prepared and is now currently circulating (while trying very hard to keep it confidential) their so-called "compromise" FISA bill. Their soon-to-be-unveiled bill, unsurprisingly, is designed to give the White House exactly what it has demanded, with only the smallest and most inconsequential changes.

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The current draft does not contain telecom immunity (solely for temporary strategic reasons -- see below), but incorporates every substantive warrantless surveillance provision of the Rockefeller/Cheney bill passed by the Senate, with several small and worthless exceptions that they'll try to sell to what they obviously think is their stupid base as some vital "concessions":

  • The House bill has a 4 year-sunset provision rather than the Senate's 6 years;
  • It provides for an audit by the DOJ's Inspector General of the "Terrorist Surveillance Program" (the only change that I would describe as something other than worthless);
  • It contains a provision stating that the bill is the "exclusive means" by which the President can conduct electronic surveillance (the same provision that FISA has now which the President violated, and which the Senate refused to insert into its bill); Nancy Pelosi was trying just yesterday, lamely, to sell this provision as some sort of vital safeguard;
  • The bill mandates some minimal re-review of some of the provisions in 2009; and,
  • It contains some mild changes to some of the definitions (the specifics of which I don't know).

The plan of the House leadership is to pass this specific bill in the House, send it to the Senate (where telecom immunity will be added in by the same bipartisan Senate faction that already voted for immunity), have it go back to the House for an up-or-down-vote on the House-bill-plus-telecom-immunity (which will pass with the support of the Blue Dogs), and then compliantly sent on to a happy and satisfied President, who will sign the bill that he demanded.

The bill was drafted with the participation of, and input from, Nancy Pelosi and Silvestre Reyes, at the very least. Reyes, of course, was last seen on CNN meekly pleading with Wolf Blitzer to give him a few more days to come up with a capitulation plan, and is now making good on his commitment to Blitzer (while violating all of the tough, defiant statements he had been making when pretending to take a stand against warrantless eavesdropping and for the rule of law). My thoughts on the behavior of the House Democrats -- as stupid and self-destructive as it is craven -- are here.

UPDATE: Former Dodd campaign blogger Matt Browner Hamlin, who was instrumental in Dodd's efforts to stop telecom immunity, adds his thoughts here. And Matt Stoller notes once again the lack of leadership from presidential candidates (as opposed to fine-sounding statements) on these issues.

This report was based on unimpeachable sources close to the whole process. I'm getting a little bit of pushback already from others claiming that the plan and strategy of the House Democratic leadership is more nuanced than what I've described, and that the bill they will promote is better (the statement: "A House aide disputes both the specifics of the draft and the presumed strategy"). I'll be happy if that's true (though I doubt it), and hopefully, the fact that there's pushback at all means this is still a vibrant, ongoing process that can be affected. I'll be happy to add any statements, denials and the like.

FDL has contact information up for Chairman Reyes and Speaker Pelosi. It is here. At the very least, it can't hurt to contact them and share your views on what they're doing.

UPDATE II: Denials of this report from various House aides -- including some I trust -- are both numerous and emphatic. At the same time, I've received additional confirmation from other House sources who are credible. Under these circumstances -- where the House leadership works completely in the dark, excluding even key allies; the process is still dynamic; and various credible sources provide conflicting accounts -- it's difficult to sort out exactly what they're doing.

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Time will tell, and shortly. Virtually everyone expects the House leadership's approach to be unveiled this upcoming week. We'll see whether this report is inaccurate, and if so, whether it's inaccurate in small details or if the gist is wrong. One fact that doesn't seem in dispute: Jay Rockefeller has been the principal impediment, refusing to concede any meaningful point.

TPM's Paul Kiel now has a report, based on his own sources, of the House leadership's draft bill, which Kiel says: (a) has a 2-year sunset (as opposed to a 4-year-sunset); (b) requires an IG audit of the TSP (as I indicated); (c) has an exclusivity provision (as I indicated); and (d) adds a couple of (relatively important) safeguards to surveillance activities not in the Senate bill. Kiel also notes, as I did, that while the House bill does not currently contain immunity, that:

does not mean that the final bill to arise from the process will not. As the Politico reported last night, House Speaker Nancy Pelosi (D-CA) now favors a strategy of "ping-ponging" alternatives back and forth between the two chambers. What that means is that the House could vote out a bill that does not contain retroactive immunity, but that the Senate could vote to add it back in, sending that back to the House, where such a modified bill might pass with the help of moderate Democrats. Of course, such a strategy could also lead to stalemate, as the Politico points out.

Details aside, is there anyone left who expects this process to end, and quickly, with something other than a bill being sent to the White House that contains the Rockefeller/Cheney warrantless eavesdropping and telecom amnesty provisions?

UPDATE III: I want to underscore that some of the surveillance safeguards which TPM suggests the House may include in its draft bill are substantial and important. Those shouldn't be minimized. That includes many of the protections which made the RESTORE ACT such a superior bill to Rockefeller's Senate bill -- such as prohibitions on reversing targeting of U.S. citizens. So, there is that.

But it remains to be seen if the House bill really ends up including those protections and, far more importantly, if they really stand firm behind them (it's impossible to envision the White House or Rockefeller agreeing to them). Moreover, nobody with whom I've spoken -- including those most emphatically denying some part of the report here -- denies that the House is overwhelmingly likely ultimately to bestow amnesty to lawbreaking telecoms.

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At best, then, it's possible (though highly unlikely, in my view) that the House will end up marginally improving some of the surveillance provisions in the Senate bill, but still give telecom amnesty and needlessly gut many of the key protections of FISA. And that's the best-case scenario. There are far worse ones.


Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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