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What's at Stake Today in The Senate's FISA Filibuster Vote

Glenn Greenwald

Last August, the Democratic Congress amended FISA when it passed the Protect America Act because the Bush administration and Mike McConnell shrilly warned -- literally -- that the country would be attacked by The Terrorists if they didn't do so immediately. The administration insisted that without the vast new warrantless eavesdropping powers which that law provided, the entire country would be under grave threat of an imminent attack from Al Qaeda. As The Washington Post's Joby Warrick and Walter Pincus reported back then:

McConnell won the fight, extracting a key concession despite the misgivings of Democratic negotiators. Shortly after that exchange, the Bush administration leveraged Democratic acquiescence into a broader victory: congressional approval of a Republican bill that would expand surveillance powers far beyond what Democratic leaders had initially been willing to accept.0128 02 Congressional, administration and intelligence officials last week described the events leading up to the approval of this surveillance, including a remarkable series of confrontations that ended with McConnell and the White House outmaneuvering the Democratic-controlled Congress, partly by capitalizing on fresh reports of a growing terrorism threat.

"We had a forcing function," a senior administration official said, referring to the intelligence community's public report last month that said al-Qaeda poses a growing threat to the United States and to lawmakers' desire to leave town in August. "The situation was key to making it work," the official said, adding that the report's conclusions were "fortuitous" rather than engineered.

A critical moment for the Democrats came on July 24, when McConnell met in a closed session with senators from both parties to ask for urgent approval of a slimmed-down version of his bill. Armed with new details about terrorist activity and an alarming decline in U.S. eavesdropping capabilities, he argued that Congress had days, not weeks, to act.

"Everybody who heard him speak recognized the absolute, compelling necessity to move," Sen. Kit Bond (R-Mo.), vice chairman of the intelligence panel, said later of the closed session.

Democrats agreed. "At that time, the discussion changed to 'What can we do to close the gap during the August recess?'" said a senior Democratic aide who declined to be identified because the meetings were classified. As delivered by McConnell, the warnings were seen as fully credible. "He's pushing this because he thinks we're in a high-threat environment," the senior aide said.

Democrats claimed to be so embarrassed by what was, even for them, the most absurd capitulation imaginable that they immediately vowed that it would not happen again:

Yet both sides acknowledge that the administration's resurrection of virtually unchecked Cold War-era power to surveil foreign targets without warrants may be only temporary. The law expires in 180 days, and Democrats, smarting from their political defeat, have promised to alter it with new legislation to be prepared next month, when Congress returns from its recess.

So that's how the Protect America Act -- like most other laws drastically expanding the President's unchecked powers -- was born: in a climate of rank fear-mongering and exploitation of the Terrorist Threat: If you don't give the President these new extraordinary powers, we're all going to die. Once the Democrats did what they were told and passed the PAA, the President "commended" them and insisted that the new law was indispensable in Keeping Us All Safe:

When our intelligence professionals have the legal tools to gather information about the intentions of our enemies, America is safer. . . . Mike McConnell, the Director of National Intelligence, has assured me that this bill gives him the most immediate tools he needs to defeat the intentions of our enemies. And so in signing this legislation today I am heartened to know that his critical work will be strengthened and we will be better armed to prevent attacks in the future.

The PAA's amendments to FISA -- but not FISA itself -- expire on February 2 and, due almost entirely to the behavior of the White House and their GOP Congressional followers, it seems unlikely that a new law can be in place by that date. On Thursday, Mitch McConnell blocked votes on all amendments, all but forcing the Democrats to filibuster today in order to prevent a final vote before those amendments can be considered. And, after refusing for months to allow House members access to any documents relating to the programs they're supposed to vote on, the White House announced last week -- just days before the PAA expires -- that they will finally allow Representatives to review tens of thousands of new documents. As a result of these GOP-caused delays, Congressional Democrats are seeking a 30-day extension of the PAA to give them time to pass a new law in a calm and deliberate manner. But after claiming that the PAA is oh-so-vital to our ability to remain alive, the President this weekend threatened that he would veto any such extension, thus allowing this Extremely Critical Law to expire, as reported by The Politico's Mike Allen:

The White House told Democratic congressional leaders Saturday that President Bush opposes a 30-day extension of an expiring eavesdropping law and instead wants an expanded version to be passed by Friday. "The president would veto a 30-day extension," a senior administration official said.

The administration explicitly admits that the President won't allow an extension because he wants to repeat the success of last August -- when Congressional Democrats capitulated to every Bush demand because they were told they had to act within a matter of days, i.e., before their recess, lest they cause us all to be killed by The Terrorists. "They need the heat of the current law lapsing to get this done," said a senior administration official, courteously granted anonymity by The Politico's Allen to issue these threats. This veto threat is one of the President's most brazen acts ever, so nakedly exposing the fun and games he routinely plays with National Security Threats. After sending Mike McConnell out last August to warn that we will all die without the PAA, Bush now says that he would rather let it expire than give Congress another 30 days. He just comes right out and announces, then, that he will leave us all vulnerable to a Terrorist Attack unless he not only gets everything he wants from Congress -- all his new warrantless eavesdropping powers made permanent plus full immunity for his lawbreaking telecom partners -- but also gets it exactly when he wants it (i.e., now -- not 30 days from now).

If the Democrats had even the slightest strategic sense and/or courage -- just the slightest amount -- this is a political confrontation they would be uncontrollably eager to have. Just imagine if they sustain the filibuster today and instead pass a 30-day extension of the PAA, and then Bush vetoes it, knowingly choosing to leave the intelligence community without the ability to Listen In When Osama Is Calling. It would be the height of political stupidity for Democrats to be afraid of that outcome.

* * * * *

That's what is at stake today as Senate Democrats try to sustain a filibuster against the Republicans' efforts to force a final vote on the truly pernicious Senate Intelligence Committee bill. Are there any limits at all on the willingness of Congressional Democrats to be bullied and humiliated by Republicans, even by the most transparently disingenuous tactics such as these? FDL has the contact information for calling and faxing the Senators who appear to be key for sustaining the filibuster, and Jane Hamsher reports that -- almost certainly due to public pressure -- both Sen. Clinton and Sen. Obama are going to be present for the vote today in order to vote for the filibuster. The vote is scheduled for 4:30 p.m. EST and I'll be live-blogging the events today here.

The veto threat from the President is so unbelievably corrupt and manipulative that if our national press had even the smallest amount of critical faculties and understanding of the issues, that veto threat would be a major story. After all, how can the President possibly threaten the country that he will veto a law that he himself has claimed for months is indispensable for Protecting Us All?

But as has been true from the beginning of this scandal, reporters have been too slothful to learn the facts (or too willing to distort them), and administration officials have been easily able to convince them of all sorts of things that are patently false, which they then convey to their readers. Here, for instance, is what The Politico's Allen wrote:

The Foreign Intelligence Surveillance Act, which governs surveillance of telephone calls and e-mail traffic of suspected terrorists, expires on Friday. After that, any monitoring that's currently authorized could continue, but no new surveillance could begin.

Wow - that sounds scary. Come Friday, there's no more FISA! And no new surveillance can begin! The Congress better act and quick! I can't believe Congressional Democrats are playing games with our safety this way! Of course, all of those statements all wrong, factually false. FISA is the law that was passed in 1977 and updated repeatedly since then, including with post-9/11 amendments that caused Bush himself, at the time, to say about the newly amended FISA: it "takes account of the new realities and dangers posed by modern terrorists" and "will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones."

FISA does not expire on Friday, contrary to Allen's gullible parroting of what his anonymous White House friend told him. It continues indefinitely even if the PAA expires. And under FISA's long-standing provisions, the Government -- just as Bush himself said back in October, 2001 -- has all the power it needs to eavesdrop on The Terrorists provided it gets a warrant from the FISA court or, in cases of emergency, within 72 hours after it begins eavesdropping.

* * * * *

It has been a long, long time since Democrats contravened orders from the White House and Senate Republicans in any way (can anyone remember the last time?) A successful filibuster today would be an extremely mild step. It would not mean that they are rejecting telecom immunity. It would not mean that they are standing against new warrantless spying on Americans. Even with a filibuster and 30-day extension, they still have plenty of time to capitulate on those issues if they want to (although, as I argued on Saturday, even a short extension could be vital in marshalling public opposition to immunity and/or expanded warrantless spying powers).

At most, a sustained filibuster today would simply mean that they are demanding the right to vote (probably with futility) on their own amendments before passing Bush's new law and demonstrating that there is at least some very weak limit on the administration's ability to bully and humiliate them with the most transparently manipulative tactics imaginable. If they filibuster, Bush will undoubtedly attack them as Soft on Terrorism in tonight's State of the Union speech, but nobody outside of David Broder, Joe Klein and the Super Tough Blue Dogs listens any more or cares about George Bush's attacks.

Any rational person has long ago given up the hope that Congressional Democrats will stand for any actual political convictions, but the most basic sense of personal pride and human dignity -- which one thought was an intrinsic part of human nature -- would preclude their capitulation today. If they don't stand up to the White House and Senate Republicans under these circumstances, one might as well accept that they never will do so.

© 2008

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