This is a response to Representative Jane Harman’s diary, and includes a direct answer to her query therein; "Got any better ideas?"
The fact that Representative Harman took the time to write evidences at least a willingness to engage. Or at least that willingness can be encouraged by the right type of effort.
Drational, who wrote the original piece that Harman was replying to, wrote an excellent response along these same lines, here.
Yet the initial comments in direct response to Harman’s diary were not as encouraging. In a very late comment therein, I suggested that disdain is counterproductive -- particularly without context. Some of that relevant context is supplied here, in a very popular piece that made a compellingly candid case before going extremely negative. Hopefully Representative Harman, and others, can understand the frustration that it captured; a frustration that many in both parties -- but particularly Democrats -- feel with Congress right now, and with the capitulation therein, it seems to many, to the rhetoric of the Far Right in lieu of articulating and standing up for the principles that matter.
Representative Harman and other Congressional leaders should also note that many moderate Republicans have even expressed these latter sentiments to me as well -- yes; that Democrats have been capitulating, failing to communicate an effective case, and failing to articulate, again, the principles that matter.
How much do they matter? In an October, 2006 piece in the Washington Monthly, Ronald Reagan Deputy Attorney General Bruce Fein (after disparaging Democrats in general, of course) had this to say:
So conservatives should weep if Democrats prevail in the House or Senate?...perhaps not. The most conservative principle of the Founding Fathers was distrust of unchecked power.
Fein goes on to imply that the case as a practical matter has to be made predominantly by Democrats as well:
Republicans have shied from challenging Bush by placing party loyalty above institutional loyalty, contrary to the expectations of the Founding Fathers. They do so in the fear that embarrassing or discrediting a Republican president might reverberate to their political disadvantage in a reverse coat-tail effect.
Even with that consideration, as noted here, many in Congress last year who actually did stand up to the President were Republicans, not Democrats.
Yet Fein, a staunch conservative, openly rooted for the Democrats to capture Congress in 2006.
Why? Because, as he put it:
If Democrats capture the House or Senate in November 2006, the danger created by Bush with a Republican-controlled Congress would be mitigated or eliminated.
Yet this is not what we have seen, in the least. Even despite the fact that many Republicans have in fact spoken out, and several conservatives have left the administration in protest over these very same, and related issues -- leading to an increasingly unchecked, autocratic, and insulated administration, that has nevertheless been exceedingly successful in substantially altering (and undemocratizing) many of our most basic processes of government.
Let’s take a further brief look at what Representative Harman wrote, and then answer her question.
She indicated she voted against the Orwellian named "Protect America Act." This is, at least, more than can be said for many other Democrats in Congress. And she said she is "calling" on the White House to share more than select documents, so why not focus on the idea that "calling for" continues the same "optional" approach that this WH has taken with respect to Congress for the past seven years?
She also wrote:
"What rubbish! For those like me who insist that the President’s domestic surveillance program must comply fully with the Constitution and the 4th Amendment, the only way for Congress to get there is with a veto-proof majority. That's why I'm working with Republicans. Got a better idea?"
This response needs to be understood in context. Drational, in his very well written and articulated piece (and a story that I suggested to him was media worthy), suggested that those few Democrats -- Rockefeller, Pelosi, Harman -- who were allegedly "briefed" on the administration’s clandestine program in contravention of FISA (and despite the fact that FISA had been updated by the USA Patriot Act in October, 2001 in direct response to the attacks of September 11, 2001 to address our specific counter intelligence needs) -- might face some legitimate questions of liability themselves.
In this context, Representative Harman’s response is more understandable. The question is, do we want her and other Congressional Representatives in Congress to move forward and rectify what has been an egregious and unconstitutional power grab by the Executive Branch -- and in which Congress as a whole has been somewhat complicit -- or do we want them to remain defensive and recalcitrant towards the idea of finally, standing up, and doing what is right.
I vote for the latter. This stuff matters. As drational suggested in his similarly well written and respectful response to Harman’s reply: "To me, the Bush Administration Unitary Executive Power Grab, and the failure of Congressional oversight have created the biggest internal crises our country has ever faced."
Whether or not it is the biggest ever (and perhaps what he meant was that greatly exacerbating it, is the fact that, unlike other crisis' -- and swept asunder by the same excessive rhetoric that has produced it -- it is not being effectively addressed); he is similarly reasonable in stating that; "The outcome of this debacle will influence the world forever."
And so to that end, I am going to answer Representative Harman’s query for "better ideas," directly.
The statement that a veto proof majority is the only solution, is not technically accurate. Additionally, in terms of effectively addressing this issue, it is also important to consider why, to the extent it is accurate, it even is in the first place.
As detailed in this letter to Washington Post editorial page editor Fred Hiatt yesterday, the program as initially instituted was not legal. The long line of experts who have spoken out unequivocally on this matter is only touched upon therein.
And again, Harman was one of the few Congresspeople originally briefed on the program. Of course, we do not know the extent to which she, Pelosi, or Rockefeller (the three members noted) were briefed, or what they were told, but the need for secrecy from Congress itself certainly suggested the strong possibility that the program was outside of the law.
At this point, rather than solely point fingers at Representative Harman, or Senator Rockefeller, this detailed, and I hope reasonable, comment perhaps helps explain their knowledge and participation in this, and brings it into closer accord with the views expressed in the response by Harman.
However, the fact remains that clarity on this issue will not be achieved until not only the media, but Congresspeople themselves stop dancing around the constitutional and legal reality of this. Instead of defensively labeling drational‘s suggestions as rubbish, "We made an egregious mistake," might be a far more effective approach. It will not only help to put the program in the proper constitutional framework, but it is one that will move us towards addressing what has been a flagrant disregard for our founding principles, and one that it appears, from Representative Harman’s response, she is ready to embrace. And this, frankly, is a direction that thus far -- hence the crisis that many perceive and which have prompted the types of innate responses referenced above -- Congress simply has not taken.
But what about this "only way is with a veto proof majority" contention? With respect to any constitutional issues raised, FISA notwithstanding, they can not be cast aside by statute, even if that statute intends to accomplish otherwise (as some have argued with respect to the Protect America Act). As a practical matter, however, this process takes interminably long. But to begin the process, the rule of law which governs our government must be reinstated. It will no longer do to accept stonewalling, or the ignoring of subpoenas and other requests for the necessary information upon which our processes of Democracy depend.
However, the key fact here is that FISA was in place, as originally enacted and as amended several times subsequent to the attacks of September 11, 2001, until the frenzied and sudden passage of the so called "Protect America Act": which through a circuitous and little debated route, effectively gutted it, and more (by placing some communications which did not necessarily fall under FISA but fell under the Federal Wiretap Act, outside of the scope of all pre existing statutes).
Repeat, prior to the enactment of the Protect America Act, the protections of FISA were in place.
As noted here:
Democrats also don’t seem to have a practical sense of procedural implications and strategy. Or, if they do, they don't always exercise it: That is, by gutting FISA in August, any reinstitutions, as a practical matter, would have to pass by a two thirds veto proof majority; a significant impediment. And it is harder to add protections back in, then to simply have continued them, in the first place. While the gutted FISA alteration sunsets in six months, the only thing that will be different in six months is that it will be harder than it was in August; as, since then, all "proposals" by politicians (and, misleadingly, "assessments" by the media alike) have been typically based off of the far less protective, Protect America Act, rather than FISA.
No fewer than two Congressmen (there may be more, the testimony is lengthy and hard to get through), Rep‘s Jerry Nadler John Tierney, essentially made the same point.
In that same piece I had further suggested: "Yet Democrats, back in August, didn't seem to think of this either. Or erroneously thought it would not matter. Or, also erroneously, felt like they had no choice (perhaps the most debilitating perspective of the three)."
Since obviously Nadler and Tierney addressed this issue, others either did not care, or, as suggested, very sadly felt like they had no choice.
This was a grievous error.
It resulted directly from Congresspeople not standing up and articulating why these principles matter, and sending a clear message both to the Far Right trying to manipulatively shape this debate, and to the country itself, that it was not going to allow these issues to be mischaracterized any longer -- or allow the basic principles of our limited, separated, government, to be sacrificed. And from, Congresspeople, once again, bowing to, rather than exposing, the misleading rhetoric of the Far Right.
If that pattern is not addressed and rectified, we will continue to see the same long term results which Rep. Harman suggests that she (and I would imagine most other Democrats and, secretly, more than a few Republicans) is in fact adamantly opposed to. And we will continue to see the same long term results to the Democratic Party -- as it begins to look more and more like the Republican Party -- and to America, that we have seen under an effective six plus years of Far Right Wing rule in both the White House, and in Congress.
Well, that is no longer the case in Congress. Make that mean something.
Thus, Rep. Harman asked in her first of two paragraphs, as reprinted above, if one had a better idea.
I do. Work towards a veto proof majority, not necessarily for the purposes of establishing the onerous requirement of a two thirds majority in both Houses, but for establishing support for the bill that will eventually be passed. Do not yield to oversight restrictions (surreally termed "concessions" by those in the press and elsewhere) in order to seek false compromise when it comes to America’s founding principles -- when several updates to FISA have already been a compromise. And if the case can not be effectively made, then when the Act sunsets in three months on February 4, do not repeat the same mistake that was made on August 4.
Do not capitulate out of concern for being labeled weak. Instead of trying to make it falsely appear as if Democrats are strong; actually be strong. Expose the constant mischaracterizations, articulate the principles that matter, explain why, and stand up for them.
You have the Constitution, you have what makes America, America, you have the courage of the American people, you have the foresight of our Founding Fathers, you have the innate desire of Americans -- what sets us apart -- to not want, in the words of John Edwards, "to cower in the corner, waiting for somebody to watch over us and protect us,’’ heck, you’ve even got several leading Republicans, on your side. Explain that fighting terrorism effectively and powerfully does not mean abandoning our government of checks and balances that we were founded upon. Explain that our system of oversight and checks has nothing to do with information that can somehow enable terrorists to "avoid" being spied up.
And have an updated FISA ready to be signed into law on February 5, that corrects the foreign to foreign communications that under today’s modern technology may get routed through the U.S. (the ostensible reason for the so called "change" to FISA in the first place), and that will easily be signed into law at that time.
If you have not already got a two thirds majority, your party has a majority in both Houses already -- and many republicans will join you on this bill. And if that gets stalled, when it clearly addresses the technological problem, than make the case as to whose hands this is now upon, as FISA, requiring warrants in those instances where some wholly foreign communications may through technology now be routed through the U.S., will in the meantime, once again be in place. As a new rendition of the classic Who song, "Don't Get Fooled Again," Don't be manipulated again.
And one last thing: It is not the "President’s" Surveillance program. It is our program. America’s program. There is no such thing as the "President’s" program. Neither the President, nor Congress, have any authority other than as granted by the willing, informed, consent of the governed.
A big part of the problem today -- and of the direction in which we are headed if this is not reversed -- is that we have in this decade abandoned this principle. It is time to bring it back. It is what America stands for. It is what America, ultimately, is.
And we’re not about to let some depraved, psychopathic terrorists, or fear of them, change the basics of who were are. As a Democrat, stop listening to consultants, and stop listening to pollsters. This is how nations are shaped: Stand up for something. A basic principle that our Nation was founded on, is a good place to start.
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I’m calling Representative Harman’s office right now to suggest that this (or other) pieces be considered, and to suggest this approach. If you like it as well, I hope that you do the same.