FISA: the worst of times

As the House leadership stumbles toward tumbling on FISA—giving the Bush Administration pretty much everything it has sought in this fight—I would like to urge those who are not regular readers of Glenn Greenwald to take a look at a few recent posts—first, because they say things that I have consistently found central to this debate as I have thought and written about it over the past couple of years, and second, because they say it so damn well.

Let me give you a taste of just a few of the central points.

On Friday, after President Bush held a presser to once again dissemble and fear-monger about warrantless surveillance (I posted some video of it here), Greenwald caught the president in a rare instance of frankness:

. . . Bush is finally being candid about the real reason the administration is so desperate to have these surveillance lawsuits dismissed. It's because those lawsuits are the absolute last hope for ever learning what the administration did when they spied on Americans for years in violation of the law. Dismissal via amnesty would ensure that their spying behavior stays permanently concealed, buried forever, and as importantly, that no court ever rules on the legality of what they did. Isn't it striking how that implication of telecom amnesty is never discussed, and how little interest it generates among journalists -- whose role, theoretically, is to uncover secret government actions?

It is, I suppose, comforting to know that the president has finally cottoned to what we all knew last fall.

Greenwald’s Sunday post observed that nothing so well exemplifies our political shift to the right than the debate over FISA. We forget today just how much of a departure the original FISA act was from our previous expectations of Constitutionally protected privacy. Imagine, a secret court where only the government is allowed to present evidence and only the executive branch and small number in Congress are ever privy to the court’s findings—does that sound like America to you?

It sure didn’t to many at the time. For instance, conservative NYT columnist, and former Nixon speechwriter, William Safire, who called FISA “the most sweeping authorization for the increase and abuse of wiretapping and bugging in our history.”

The telecom industry, which, back in 1977, went by the name “AT&T,” was also opposed to the process because it compelled them to cooperate with any order from the attorney general that was affirmed by the FISC. As described by Greenwald, this law turned Ma Bell into an active arm of Big Brother. As also noted on Sunday, the fact that the history shows that telcos have always been compelled to obey a FISC-ordered warrant lays waste to Bush Administration claims that without full amnesty, telecoms would be less inclined to help the government.

The confluence of Bush’s accidental candor and Greenwald’s careful excavation of the history does then beg the bigger question: What do Bush and his black-baggers have to hide?

As this chart (again, h/t Glenn) shows, FISC almost never refuses to issue a warrant. As the history shows, with a warrant, the telecom industry is compelled to cooperate. So, what does the White House want to do—more to the point, what have they been doing—that is so outside the bounds of the super-secretive and wildly permissive original FISA law?

Actually, the answer seems fairly clear to me. There has already been evidence of pre-9/11 spying introduced in court. There have already been published accounts of the current administration using spy agencies to pursue journalists and their contacts. And, there is ample documentation that the NSA has had most of the telecoms build splitters into their systems that would send copies of every electronic communication that passed though the network to the spy agency.

What would make a FISC judge blanche? What would give an entire justice department pause—as happened back when Abu Gonzales, Andy Card, James Comey, and John Ashcroft had their little hospital room contretemps? Let’s hazard a guess: Spying on United States citizens inside the United States without going through the standard warrant process in traditional courts as outlined in the US criminal code.

I get this. Greenwald gets this. I even suspect that you, dear reader, get this. So, the question is, why doesn’t the Democratic Leadership get this? (And, of course, why doesn’t the establishment media get this—or, at least, care? But that is almost a rhetorical question at this point.)

Which bring us to Glenn’s most recent FISA-related column.

Greenwald has long ago written off the desire of most of our Congressional leaders to stand up for the rights of Americans, to stand against an increased permissiveness under a new FISA, to stand against amnesty for the telcos and, in all reality and obviousness, the Bush Administration, and to stand with the majority of Americans who oppose warrantless surveillance and telecom immunity. Some electeds actually side with Bush, some want to cover their own tracks, and many just don’t grasp why this is important (or, some just don’t grasp it at all). But what baffles Greenwald, and has baffled me and so many others in the past as it does now, is why then have the Democrats played this fight as they have? These are professional politicians—if they wanted to simply score a political point, then why have they failed so miserably?

[W]hat is somewhat baffling in all of this is just how politically stupid and self-destructive [the Democratic Leadership’s] behavior is. If the plan all along was to give Bush everything he wanted, as it obviously was, why not just do it at the beginning? Instead, they picked a very dramatic fight that received substantial media attention. They exposed their freshmen and other swing-district members to attack ads. They caused their base and their allies to spend substantial energy and resources defending them from these attacks.

And now, after picking this fight and letting it rage for weeks, they are going to do what they always do -- just meekly give in to the President, yet again generating a tidal wave of headlines trumpeting how they bowed, surrendered, caved in, and lost to the President. They're going to cast the appearance that they engaged this battle and once again got crushed, that they ran away in fear because of the fear-mongering ads that were run and the attacks from the President. They further demoralize their own base and increase the contempt in which their base justifiably holds them (if that's possible). It's almost as though they purposely picked the path that imposed on themselves all of the political costs with no benefits.

Even with their ultimate, total compliance with the President's orders, they're still going to be attacked as having Made Us Less Safe -- by waiting weeks to capitulate, rather than doing so immediately, they opened up critical intelligence gaps, caused us to lose vital intelligence, made us less safe, etc. But now, they have no way to defend themselves against those accusations because, at the end of the day, they are admitting that the President was right all along, that telecom amnesty and warrantless eavesdropping are good and important things that the President should have had all along. So why didn't they just give it to him before the law expired? It was a loss for them on every level.

I doubt there are very many Americans who expect at this point that the Democratic leadership will take a stand against the President due to any actual beliefs. But shouldn't politicians be at least a little bit shrewd about their own political self-interest? As craven and ugly as their capitulation will be, the political "strategy" they chose is actually just more self-destructive than it is anything else. Obviously, they have no real political principles, but don't they have any strategic instinct at all?

Well, at this point, Glenn can’t answer it. And neither can I.