Time Magazine Uncritically Prints Nancy Pelosi's 'Justifications' for the FISA 'Compromise'

by Glenn Greenwald

It's hardly news that Time Magazine's principal function is uncritically to amplify false claims from government officials, but this article by Massimo Calabresi -- entitled "Behind the Compromise on Spying" -- is such a masterpiece in spouting simplistic government propaganda and rank falsehoods that it is revealing on numerous levels. The article has only one purpose -- to depict the spying "compromise" as a brilliant and heroic centrist masterstroke by Nancy Pelosi to protect us from Terrorists while simultaneously preserving our liberties -- and it employs one factually false claim after the next to achieve this. Let's just take it piece by piece, beginning with the first passage:
A compromise deal to extend the federal government's domestic spying powers, passed by the House on Friday and expected to sail through the Senate next week, has drawn attacks from both sides of the political spectrum. The right is unhappy at concessions made to protect civil liberties; the left is furious that the Democrats allowed the domestic spying powers to be extended in any form.
It must be a decent and reasonable compromise if both the extremes on the Right and Left are angry about it -- except the whole premise is patently false. The Right isn't attacking the bill at all; they're ecstatic about it.

GOP House Whip Roy Blunt and Sen. Kit Bond boasted in the NYT that they and the White House got more than they even wanted. The most extreme right-wing supporters of authoritarian Bush surveillance policies are praising the bill, from National Review's Andy McCarthy (the bill "is a good one") to Time's 2004 Blog of the Year, Powerline ("at last, a decent FISA deal"). House Republicans just voted 188-1 in favor of the bill. The only Republicans to oppose it -- such as Sen. Arlen Specter -- do so on the ground that it provides insufficient civil liberties protections, not too much.

The very first fact asserted by Calabresi is totally false, designed to make the bill seem like some centrist compromise that has angered ideological extremists on all sides, when, in fact, the furthest extremes on the Right love the bill, and with good reason. Next we have this:
Much of the latter's rage has been directed against Nancy Pelosi, the liberal House Speaker who was instrumental in negotiating the deal -- attacking her on the internet and virtually shutting down her switchboard with complaints. One blogger called Pelosi "disturbingly disoriented" and said the deal she and her allies have cut will "eviscerate the Fourth Amendment, exempt their largest corporate contributors from the rule of law, and endorse the most radical aspects of the Bush lawbreaking regime."
That passage there quotes this post that I wrote on Friday. Calabresi has sent me emails several times in the past about FISA and other pieces I've written. But when quoting what I wrote, I have to be an unnamed "one blogger" who is "attacking [Nancy Pelosi] on the internet," because the only people who could possibly object to this Important Centrist Compromise are shrill, unhinged leftist rabble who (unlike real journalists) write "on the internet" and shut down Official Government Switchboards with their "rage." And Calabresi studiously ignores the vast factions on the Right who are vigorously opposed to these extremist policies -- from the Ron Paul faction to libertarian groups such as the Cato Institute and presidential candidate Bob Barr -- in order to demonize oh-so-exotic doctrines like Search Warrants and the Rule of Law as some sort of Far Leftist agenda.

Moreover, the article of mine which Calabresi is quoting, and thus presumably read, amply documents that the Right loves this bill and was boasting that they got everything they wanted. Calabresi thus knows full well that the central premise of his article -- it angered both extremes! -- is patently false. But in terms of outright false statements, nothing can compete with this next passage, which begins by telling us that what motivated Pelosi to support this bill was "a mix of politics, pragmatism and some significant concessions," and then describes this one "significant concession" in particular:
Letting the PAA expire was a risk - the Administration pilloried Democrats for being soft on terrorism. But Pelosi successfully parlayed it into specific improvements. For example, under Administration proposals, the telecoms would have received full retroactive immunity from lawsuits brought by civil libertarians alleging they violated the fourth amendment by complying with Administration requests to conduct wiretaps following 9/11. In negotiations with Pelosi's office, the telecoms offered a compromise: Let a judge decide if the letters they received from the Administration asking for their help show that the government was really after terrorist suspects and not innocent Americans.

Pelosi's negotiators felt that was a significant concession. The California district judge who will make the decision in such cases has been sympathetic to some of the civil libertarians' claims. And an adverse decision can be appealed to the liberal Ninth Circuit Court of Appeals. The telecoms are casting it as a victory, and Pelosi's aides acknowledge the telecoms are likely to win immunity in court. But they're getting less than they would have in A Senate version of the bill, and they will hardly have a free ride once litigation and lobbying fees have been added up.
This is false from start to finish. Calabresi literally knows less about this topic than his colleague, Joe Klein. I try hard not to use the word "lie" except when it's absolutely clear that it applies, and it does here. Either Pelosi's spokesperson feeding these claims is lying about one of the key provisions of this bill, or Calabresi is, or both. The law does not do what this article says it does.

The court most certainly does not decide if the Government letters to telecoms "show that the government was really after terrorist suspects and not innocent Americans." To the contrary, the judge is barred from examining the real reasons this spying occurred. The judge has only one role: dismiss the lawsuits as long as the Attorney General -- Bush's Attorney General -- claims that the spying was "designed to prevent or detect a terrorist attack."

The court is barred from examining whether that's true or whether there is evidence to support that claim. It's totally irrelevant whether the Judge is favorable to "civil libertarians' claims" or not since he's required to dismiss the lawsuits the minute the Attorney General utters the magic words, and he's prohibited from inquiring as to whether the Attorney General's statements about the purpose of the spying are true. That's why Rep. Blunt dismissed the whole process as nothing more than a "formality" -- because it compels the court to dismiss the lawsuits and bars it from engaging in the inquiry which Calabresi falsely assures his readers the judge will undertake.

As for the notion that telecoms will have "hardly had a free ride" from breaking our spying laws because they had to pays fees to lobbyists to get Congress to write an amnesty law for them, and incurred some lawyers fees in the resulting lawsuits, that's really almost too extraordinary for words. The amount of fees the telecoms incurred is less than pocket change. And in return, they are having the Congress pass a law with no purpose other than to compel dismissal of lawsuits brought against them by their customers for breaking the law.

But in today's America, it's considered a real burden -- an unjust plight -- when put-upon high government officials such as Lewis Libby and terribly-burdened huge corporations such as AT&T have to incur some fees in order to win extraordinary government protection from consequences after they get caught deliberately and continuously breaking numerous federal laws. It's touching to see the Time Warner Corporation express such empathy for the tribulations of AT&T and Verizon through its media organs.

Finally, we have this explanation as to why Pelosi and the House leadership did what they did:
Stonewalling the Administration and letting the surveillance powers expire could have cost the Democrats swing seats they won in 2006 as well as new ones they have a chance to steal from Republicans this November. "For any Republican-leaning district this would have been a huge issue," says a top Pelosi aide, who estimates that as many as 10 competitive races could have been affected by it. . . .
Pelosi's centrist compromise doesn't just help House Democrats in the fall. It also gives the party's presumptive nominee for President, Barack Obama, a chance to move to the center on national security. "Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay," Obama said in a statement Friday. "So I support the compromise."
The very idea that Democrats would lose elections if they didn't support this bill is false on numerous levels. They could have easily removed the issue simply by voting to extend the PAA orders for 6-9 months. More importantly, Karl Rove's central strategy in the 2006 midterm election was to use FISA and torture to depict the Democrats as being Weak on Terrorism, and the Democrats crushed the Republicans and took over both houses of Congress. Pelosi's claim that they support extremist Bush policies in order to avoid election losses in "swing districts" is dubious in the extreme -- an excuse to feed to Democratic voters to justify their complicity in these matters.

But whether true or false, this "justification" is precisely why I believe so fervently that the only option we have to battle against continuous assaults on core constitutional and civil liberties is to target the very seats that the Democratic leadership constantly points to in order to justify their behavior. What the Democratic leadership is saying is quite clear: we will continue to trample on the Constitution and support endless expansions of the surveillance state because that is how we'll win in swing districts and expand our Congressional majority (Hunter at Daily Kos -- "one leftist blogger" who spews rage "on the Internet" -- has one of the clearest statements on why this bill is so abominable). The only objective of Nancy Pelosi and Steny Hoyer is to have a 50-seat majority rather than a 35-seat majority, and if enabling the Bush administration's lawbreaking and demolishing core constitutional protections can assist somewhat with that goal, then that it what they will do. That's what they are saying all but explicitly here.

Until that calculus changes, their behavior never will. That's why it is so vital to target and defeat selected Democrats in Congress who are enabling these unconstitutional and lawless assaults. Democratic leaders need to learn that this strategy won't work. Right now, they think there is no price to pay from doing things like giving telecoms amnesty and destroying the Fourth Amendment, because those who oppose that won't do anything other than continue to support them. If they start losing seats when they engage in that behavior rather than gaining them -- if people who want to defend the Constitution and impose limits on the lawless Surveillance State work together to destroy this risk-benefit calculus by punishing them rather than rewarding them when they do things like this -- only then will they stop doing it.

If, as a result of their destruction of the Fourth Amendment and the rule of law, they see that they lose seats -- that John Barrow and Chris Carney are removed from Congress and Steny Hoyer's standing in his district is severely compromised and that list of targets continues to grow -- then they'll conclude that they can't build their Vast and Glorious Democratic Majority by dismantling the Constitution and waging war on civil liberties. The Democratic Party in Congress is enslaved to the goal of winning more "swing districts" by supporting extremist measures -- such as the FISA "compromise" -- that please the right-wing. They need to learn that they won't benefit, but will suffer, when they do that.

Our campaign just exceeded $300,000 yesterday. We're going to announce the details behind the Money Bomb part of the campaign, coordinated by those responsible for the Ron Paul money bombs, very shortly. I can't think of a better explanation for the strategy we've adopted than this Time article and what it's conveying about the mindset of Nancy Pelosi and her fellow Democratic Congressional leaders. This model of an ideologically diverse coalition, devoted to battling the political establishment's endless expansion of unchecked power, is creating real turmoil and disruption in Britain, and that model can work here, too. The Democrats will control Congress for the foreseeable future no matter what, and until their incentive structure changes significantly, they'll continue to support measures identical to the worst Bush abuses and then justify it by the type of propagandistic tripe they fed to a mindless, hungry Massimo Calabresi here. Only substantial disruptions to that pattern can engender substantial behavioral change.

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For those who haven't seen it, this segment with George Washington University Law Professor Jonathan Turley -- who is anything but a "leftist" -- should be watched to get a real sense for what Democrats have done here:

UPDATE: This comment, from Casual_Observer, describes exactly the contours of the relevant political battle. The central focus is not Democrats v. Republicans; the GOP has sullied its brand to such an extent that they are relegated to a small minority for the foreseeable future. The GOP already has a 40-seat deficit in the House which will only grow, as will their deficit in the Senate. The focus is on what Democrats will do with their majority and, more importantly, who will exert the most influence and towards what ends.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
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