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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).



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 anyway, 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 capitoilette and The Seminal)

Originally posted to Red Wind on Wed Jun 18, 2008 at 05:44 AM PDT.

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Comment Preferences

  •  More from Glenn: (23+ / 0-)

    As Judge Walker ruled, the alleged actions by the telecoms "violate the constitutional rights clearly established" by prior Supreme Court rulings and "no reasonable entity in [the telecoms'] position could have believed [the spying program] was legal." Beyond that, the telecoms -- by allowing the Bush administration to spy on their customers with no warrants -- knowingly violated at least four separate federal statutes (.pdf).

    Despite that, Steny Hoyer and other House Democrats are about to block the court from ever ruling on those issues and, instead, hand the telecoms something that no ordinary citizen would ever receive: namely, complete immunity without their ever having to answer for their conduct in a court of law. It is corruption in its most extreme and transparent form.

    Anything can happen. You can even get a full glass of beer at a cocktail lounge.

    by Red Wind on Wed Jun 18, 2008 at 05:43:47 AM PDT

  •  If it isn't broken don't fix it (6+ / 0-)

    I hope Democrats in Congress stonwall the traitors in the Cheney/Bush White House.

    Give them zip.

    "Fascism should more properly be called corporatism because it is the merger of state and corporate power." - Benito Mussolini.

    by Lefty Coaster on Wed Jun 18, 2008 at 05:49:46 AM PDT

  •  But but but (3+ / 0-)
    Recommended by:
    ER Doc, manwithnoname, shortgirl

    The NYT is a LIBERAL paper!

    "I refuse to build the wall by adding my own bricks that separate us all. I'd rather die...than be a part of your pride."

    by 1 20 2009 on Wed Jun 18, 2008 at 05:49:53 AM PDT

  •  Yet another losing soundbite war from spineless (5+ / 0-)

    Dems of DC.

    100's of Dem Congresscritters,

    1000's of staffers doing stuff with media, communications, press, public affairs, ...


    and these fucking dishrags can't stop the fascists!


    given that the dishrags have either allowed, or aided and abetted, letting political discourse exist at 15 degrees off of far far right, I'll be disappointed when this fascists 'compromise' passes, but I won't be surprised.



    Yond Cassius has a lean and hungry look; He thinks too much: such men are dangerous

    by seabos84 on Wed Jun 18, 2008 at 05:52:00 AM PDT

  •  send a letter to the nominee (7+ / 0-)

    Hoyer is lost.
    Reid is lost.
    Pelosi is lost.
    Leahy and Conyers are lost in a fog, apparently.

    That leaves the new leader of the Democratic party, Barack Obama.

    Send him a letter and tell him you expect him to LEAD on this issue NOW. That CHANGE is action, not just words.

    If he comes out strongly, this idiocy will go away.

    Please, folks, we need to be loud on this. the criminals are in a frantic hurry for a reason. They are caught.

    On Liberation Day, 1/20/09, Americans will greet us with flowers and candy

    by kamarvt on Wed Jun 18, 2008 at 05:53:48 AM PDT

  •  Will an Obama hold be honored by Reid? (7+ / 0-)

    Dodd was a candidate, and Harry gave him the one finger salute, so what happens if Obama puts a hold on this madness?

    St. Ronnie was an asshole.

    by manwithnoname on Wed Jun 18, 2008 at 05:56:33 AM PDT

    •  Sadly I don't think Obama's on our side -- YET!!! (3+ / 0-)
      Recommended by:
      Red Wind, gem spa, shortgirl

      As the de facto leader of the party, Obama could stop this is 5 seconds if he wanted to.  The fact that it's gotten to this stage confirms that he has given his tacit blessing to this strategy.

      I can't understand it, although maybe the most charitable explanation is that he's being advised by the same inside-the-beltway political consultants who have given us 7 years of craven enabling of the Bush Administrations frontal assaults on the post-1789 (let alone post-1689 and post-1215!) American Constitutional Order and the Rule of Law, and perhaps they have convinced him that we can't afford letting McCain paint him as being soft on terror (as if passing this atrocity would stop them from trying to paint him as such).

      What's worse is that, unlike many politicians who may not be experts on the nuances and subtleties of constitutional law (and can therefore at least plausibly claim stupidity as a defense for their profoundly anti-American support for trashing the constitution), Professor Obama has no such excuse.  He's smart enough to know exactly what's at stake.

      So our job needs to be to convince him to step up and lead on this, lest his base conclude that the soaring and inspiring rhetoric is simply a pretty repackaging of "business as usual."

    •  Reid has expressed his own displeasure... (4+ / 0-)
      Recommended by:
      Red Wind, ER Doc, gem spa, shortgirl

      ... but that doesn't mean he'll keep his oath to protect and defend the Constitution and prevent it from passing the Senate:

      Senate Majority Leader Harry Reid, D-Nev., said he wouldn't support the deal, which would break an impasse over whether U.S. telephone companies alleged to have participated in the government's warrantless wiretapping program should be given immunity from civil lawsuits.

      Many Democrats are still anxious about the proposed agreement, which would place lawsuits involving telephone companies in federal courts.

      "I will not support that, but a lot of people will," Reid said.

      Staffers said the final details are still being worked out.

      "There is a plan that will pass the House that (Majority Leader) Steny Hoyer, D-Md., is supporting but some members of the Democratic House leadership may not be supporting," said Senate Majority Whip Richard Durbin, D-Ill. "It would have kind of a mixed reaction over here" in the Senate.

      Durbin said the deal will probably get a majority of supporters in the Senate despite his opposition.

      "I don't like this provision of sending it back to the courts," Durbin said. " I think it's the lowest possible threshold."

      "Without bitterness, all chocolate is a Hershey bar." -- Harry Shearer

      by tbetz on Wed Jun 18, 2008 at 08:36:05 AM PDT

      [ Parent ]

  •  Substitute the word "killing" for "spying" and (5+ / 0-)

    and then ask if retro-immunity should be granted. To say that the telecoms didn't know what they were doing was illegal is bullshit, and Qwest should be commended as being the one major corporation that refused to play ball.

  •  Hoyer's a Hack DLC (4+ / 0-)
    Recommended by:
    Red Wind, DarkestHour, ER Doc, shortgirl

    get him out of there!

    Before: "America Rising" - John Edwards we are with you. - After - Not This Time - Barack Obama we are with you!

    by totallynext on Wed Jun 18, 2008 at 07:03:34 AM PDT

  •  Obama should not just vote against it (4+ / 0-)
    Recommended by:
    Red Wind, ER Doc, gem spa, shortgirl

    He should use some off his political capital and STOP IT! He should put a hold on it, filibuster it, do whatever it takes to put and end to it.

    I will be very disappointed if he simply allows it to pass without even trying to stop it.

    "Everyone is entitled to their own opinion, but not their own facts." Sen Daniel Patrick Moynihan

    by atlliberal on Wed Jun 18, 2008 at 07:43:49 AM PDT

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