NYT calls BS on the FISA “compromise”

Here’s the skinny: When you see the words “Republican” and “compromise” in the same phrase, it should pretty much tell you all you need to know about a piece of pending legislation. Republicans don’t actually believe in compromise; either that, or they don’t understand what it means. The GOP, as it now stands, either gets its way, or, if it doesn’t, demands a recount or a do-over. Politics for this bunch is both blood sport and a zero sum game—they don’t play nice, and they don’t meet you half way. That’s been the case for the better part of the last fifteen years. . . at least.

That’s all you need to know, that’s all Democrats in Congress should need to know, but I’m going to tell you more.

In recent weeks, word has leaked out of a compromise on new FISA legislation drafted by Republican Senator Kit Bond (MO).

Republican.

Compromise.

This “compromise” [cough] has been mostly the stuff of rumor, so, even though I fancy myself a close watcher of things FISA, I have tried to keep my powder dry. Until Kit and his colleagues put it on paper—paper that we all could see—I figured my outrage would just be a fusillade of concerned citizen energy expended against a barricade of plausible deniability. At the time of this writing, nothing about this Bond plan has been made any more concrete, official, or real, but the faux-compromise is apparently real enough for the New York Times to sound the alarm. . . and so I will, too.

The lead editorial in today’s Times spells it out pretty simply:

In the waning months of his tenure, President Bush and his allies are once again trying to scare Congress into expanding the president’s powers to spy on Americans without a court order.

This week, the White House and Democratic and Republican leaders on Capitol Hill hope to announce a “compromise” on a domestic spying bill. If they do, it will be presented as an indispensable tool for protecting the nation’s security that still safeguards our civil liberties. The White House will paint opponents as weak-kneed liberals who do not understand and cannot stand up to the threat of terrorism.

The bill is not a compromise. The final details are being worked out, but all indications are that many of its provisions are both unnecessary and a threat to the Bill of Rights. The White House and the Congressional Republicans who support the bill have two real aims. They want to undermine the power of the courts to review the legality of domestic spying programs. And they want to give a legal shield to the telecommunications companies that broke the law by helping Mr. Bush carry out his warrantless wiretapping operation.

I will add a rather important third aim: they want to give a legal shield to themselves.

Sure, Republicans (and, sadly several Democrats, too) like to help out their corporate cronies, but if the Bush-Cheney team truly wanted to help the telecoms defend themselves in court, all they would have to do is provide the records and correspondences sought by lawyers on both sides of the surveillance lawsuits. If the telecommunications companies can show that they were ordered by the Bush Administration to wiretap without a warrant, or if they could show that they were deceived by the administration as to the existence of a warrant or the legality of the spying, then (warning: IANAL) the liability of the companies would be severely limited or might disappear altogether.

But the White House and its enablers aren’t really concerned about their pals in the private sector—not that much. Much more important is to hide their own grievous wrongdoing. And to do that, they must keep the lawsuits against the telcos from progressing in any way, for, as the Times understands: “Lawsuits against those companies are the best hope of finding out the extent of Mr. Bush’s lawless spying.”

This administration is committed to keeping the extent of that spying secret, of course, for if details came out, we would come to understand that the White House not only violated the Constitution, they did so not to protect us from any terrorist threat, but instead to protect their own hold on power. Remember, the warrantless surveillance started seven months before the 9/11 attacks, and was used to keep tabs on journalists and United States citizens inside the US. We know this much partly because of reporting in the New York Times, the Washington Post, and USA Today, among others, but we know more about the timing and targets because of what has come out in open court cases so far.

The “compromise” that Kit crafted has a federal district court deciding questions of retroactive telecom immunity—however, the court would be required to decide the matter based on a presidential “certification” that telcos were told that the spying was legal.

No real public hearing, no evidence read into the public record, just a piece of paper with George Bush’s John Hancock saying “trust us.” It guarantees the lawbreakers—public and private—will get off scot free, and allows the Bush Administration to say it was all legal “because we said so.” It neither helps expose past transgressions nor constrains future ones.

The (theoretical) bill has other big problems:

It gives the government too much leeway to acquire communications in the United States without individual warrants or even a showing of probable cause. It greatly reduces judicial review, and it would remain in force for six years, which is too long.

I could throw out some inside baseball terms like “basket warrants” (it allows them) and “minimization” (it doesn’t require it), but suffice it to say that this proposal is neither a good fix for FISA or a legitimate compromise.

Besides—and the Democrats that hold the majority in both houses of Congress need to hear this—there is no compromising the Constitution.

That could and maybe should be the final word, but I want to include a few of the final words from the NYT editorial, because some people need to hear this, too.

At a minimum, the House speaker, Nancy Pelosi, and the Senate majority leader, Harry Reid, should oppose FISA expansion and pledge to revisit it next year. If any significant changes are going to be made, they should be made under the next president.

There are clear differences between the candidates. Senator John McCain, who is sounding more like Mr. Bush every day, believes the president has the power to eavesdrop on Americans without a warrant.

Senator Barack Obama opposes immunity and voted against the temporary expansion of FISA. We hope he will show strong leadership this time. He might even take time off from the campaign to vote against the disturbing deal brewing in the back rooms of Congress.

* * * *

I might have been keeping my powder in its flask, but others have been more on the ball. Lovers of our Constitution from a diverse set of groups are organizing to show our elected officials where we stand. Please read this Greenwald post for some important background and more information on how you can help.


(cross-posted on Daily Kos and The Seminal)