Back in December, Harry Reid's plan was to have the Senate quickly pass the Cheney/Rockefeller FISA bill before the Senate recessed for Christmas. But Chris Dodd's relentless delaying tactics -- his filibuster and holds and other procedural tactics designed to block quick enactment of the bill, supported at every step by Russ Feingold -- forced Reid to pull the bill from the floor and prevented the Senate from considering the bill until the following February.
At this point, procedural delay of that sort (as opposed to some principled stand against this bill by a majority of Senate Democrats) is the best hope, by far, for preventing enactment of this FISA bill. The Senate's plan was to pass the bill and send it to the President before the July 4 recess, but that plan is somewhat in jeopardy now. The more a bill like this is pushed off into the future, especially in an election year consumed with other matters, the greater the likelihood that, through inertia alone, enough delay can prevent enactment this year. The probability of being able permanently to stop this bill is still quite small but, as a result of several important events yesterday, it is higher today than it was two days ago:
(1) Chris Dodd went to the Senate floor last night to speak against the FISA bill and delivered one of the most compelling and inspired speeches by a prominent politician that I've heard in quite some time. He tied the core corruption of the FISA bill's telecom amnesty and warranltess eavesdropping provisions into the whole litany of the Bush administration's lawless and destructive behavior over the last seven years -- from torture and rendition to the abuse of secrecy instruments and Guantanamo mock trials -- with a focus on the way in which telecom amnesty further demolishes the rule of law among our political class.
That speech signals that the small minority in the Senate devoted to stopping this bill have made this a priority. Small, vocal, passionate minorities in the Senate -- backed up by vocal, passionate and engaged citizens -- can do much to prevent a bill's quick and painless passage. Dodd's speech can be seen and/or read here. I highly recommend it, and if I had one wish this week, it would be that any journalist who will ever write or utter the words "FISA," "telecom immunity" or "Terrorism" would be forced to watch this speech from start to finish without distraction.
Getting this to the recess means being able to get in a lot of Senators' faces on their trips back home. In addition, there's going to be a very short window in August where a ton of must-pass bills have to get through Congress, and throwing FISA in with that mess means that anything can happen.
Now, after that bleak bit of hopefulness: I'm sad to report that it's only because the Senate REALLY REALLY wants to pump billions into endless war in Iraq that we have a shot to delay the deletion of the Fourth Amendment. Quite a Hobson's choice. This is more an acknowledgment from Sen. Reid that he finds the housing bill and the Iraq supplemental (which includes unemployment benefits extension and the GI Bill) to be more important than FISA, and so he's going to prioritize. I don't think it means anything more than that. Overall, the fix is still in. All we can do is keep trying to delay.
But let's be honest: the truth is that the federal government, on a bipartisan basis, is largely indifferent to their constituents' privacy. Since 9-11 the situation has gotten far worse, but the surveillance state has been building for decades.
There's not going to be any near-term groundswell in the privacy-trampling, lawlessness-protecting, surveillance-loving Beltway in support of the rule of law and surveillance safeguards. But disruptive tactics have worked thus far to prevent passage of this bill -- a bill which, given that it was supported by the standard armies of bipartisan lobbyists, the permanent political class, and hordes of establishment pundits which rule Washington, would have passed long ago without any noise in the absence of these outside disruptive tactics. It's amazing how only the unyielding imperatives of their recess schedule, rather than preservation of constitutional liberties, enables bills of this sort to be stopped.
As Dday notes, the core purpose of our Strange Bedfellows coalition and the fund-raising campaign we've been conducting is to create an enduring constituency and power center to defend core Constitutional liberties, enforce the rule of law among our political and corporate elite, and to battle the surveillance state. But stopping telecom amnesty -- which means, critically, that these lawsuits will continue, thus ensuring discovery of what the Government did and a judicial ruling as to whether they broke the law -- would be a significant blow to the lawless surveillance regime.
(3) Several other Senators besides Dodd have ratcheted up the opposition to this bill in the last couple of days. In addition to Dodd, Sens. Feingold, Boxer, and Wyden all announced they would oppose cloture on the bill. Not insignificantly, Sen. Reid announced not only that he would co-sponsor the Dodd amendment to strip immunity out of the bill, but would also vote against the bill on final passage:
It is a position that puts the Democratic Senate leader at odds with his own party's presumptive presidential nominee, Barack Obama, who also has pledged to fight for the removal of immunity but will vote yes on the final package. . . . That the Senate Majority Leader would willingly take a different stance from his party's presidential nominee is an indication of both the political pressures of the current election as well as the emotional divisiveness of the FISA battle.
Feingold has escalated his rhetoric in opposing the bill, resorting to some distinctly un-Senatorial-like (though plainly accurate and needed) accusations against those who are responsible for this bill:
The Wisconsin Democrat voiced considerable frustration with members of his own party, who, he says, have enabled the sweeping new legislation. "Sen. Dodd and I and Sen. Leahy are going to do everything we can to stop this mistake," Feingold noted, referring to fellow opponents of the bill. "But I'm extremely concerned that not only virtually every Republican . . . but far too many Democrats will vote the wrong way". . . . [D]espite containing less than a handful of narrow improvements over the February amendments, the new legislation has much wider support among Democratic leaders. Many of them claim the bill represents a worthy compromise.
"That's a farce and it's political cover," Feingold said, "Anybody who claims this is an okay bill, I really question if they've even read it."
"Democrats enabled [this]," Feingold went on. "Some of the rank and file Democrats in the Senate who were elected on this reform platform unfortunately voted with Kit Bond who's just giggling he's so happy with what he got. We caved in."
Again, none of this standing alone can remotely stop the bill. While Reid's opposition to the bill is welcome, he is doing nothing, and will (as usual) do nothing as Majority Leader to stop the bill or even encourage (let alone cajole) his caucus to vote against it. But each of these small events can accumulate into just enough of an impediment to prevent passage until after the July recess, giving bill opponents more time to create further impediments and allowing for political events to do the same.
(4) Beyond the FISA bill's evisceration of the rule of law, the Fourth Amendment and surveillance safeguards, what has always been so striking with this controversy has been how transparently sleazy and corrupt it reveals the Congress to be. Right out in the open, telecoms have just led Congressional supporters of telecom immunity around like little puppets. It's just amazing -- though extremely common -- that while negotiations over the bill occurred in total secrecy, with civil liberties groups and the public at large being completely excluded, Nancy Pelosi and Steny Hoyer "negotiated" directly with the telecoms over how the telecoms' amnesty bill should be written.
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Telecoms broke our surveillance laws, and then our Democratic Congressional leaders ran to them to take instructions on how to write the special law to protect them, and they didn't even really bother to hide that. Politico reported last month that "telecom companies have presented congressional Democrats with a set of proposals on how to provide immunity." And the Pelosi-glorifying article in Time this week revealed that it was the telecoms themselves -- as key participants in the secret negotiations -- which fed Pelosi the bill's current amnesty provisions:
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.
If you break the law, you're going to be hauled into court and prosecuted. But if telecoms break the law, Nancy Pelosi, Jay Rockefeller, and Steny Hoyer will go to them and "negotiate" over what's acceptable to the lawbreaking telecoms in terms of how they'll receive amnesty.
From the beginning, the telecoms' bipartisan cast of lobbyists have driven this process. Right before he became their leading advocate, Jay Rockefeller received a huge increase in all sorts of gifts and other expressions of love from telecoms. And yesterday, a new study was released documenting that House Democrats who changed their vote this week -- who opposed amnesty back in March but voted for it this week -- received substantial largesse from the telecoms in that interval.
It's not news that our nation's largest corporations and their lobbyists control members of Congress like puppets and essentially write most key bills. But the extraordinary bipartisan gift of telecom amnesty achieves a new level of transparency in terms of how open and shameless they are about this sleazy process.
(5) Jane Hamsher has the contact information for calling the key Senators and encouraging them to join with Dodd and Feingold to impede passage of this bill, and she also has contact information to encourage Obama to do the same. There is not and never has been a constituency in this country demanding telecom amnesty and warrantless eavesdropping. Having them hear and feel the intensity of passion among those opposing these measures can only help.
(6) As noted yesterday, Obama gave a rousing speech during the South Carolina primary in which he inveighed against "wiretaps without warrants." On August 1 of last year, he delivered a speech entitled "The War We Need To Win" and said this (h/t cjackb):
This Administration also puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.
That means no more illegal wire-tapping of American citizens. . . . That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.
This Administration acts like violating civil liberties is the way to enhance our security. It is not. There are no short-cuts to protecting America, and that is why the fifth part of my strategy is doing the hard and patient work to secure a more resilient homeland.
It's difficult for even the most devoted Obama supporter to reconcile those statements, made when he was seeking the Democratic nomination, with his current support for a bill containing new warrantless eavesdropping powers and telecom amnesty. That's just a fact.
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Two side notes: (a) I was on with Rachel Maddow last Friday discussing the House's FISA bill and that interview can be heard here. I was on AntiWar Radio on Monday discussing the surveillance aspects of the FISA bill and the new coalition that has formed and that can be heard here. Today at 2:10 p.m. EST, I'll be on To the Point with Warren Olney as part of a panel discussion regarding the Obama campaign -- both in terms of FISA and more generally. Live audio and local listings are here.
(b) As I noted yesterday, Politico's article about Steny Hoyer drastically misquoted me. It said: "Salon.com's Glenn Greenwald called Hoyer an 'evil, craven enabler of the Bush administration.'" I did no such thing. In this post from the weekend, I wrote:
People who spent the week railing against Steny Hoyer as an evil, craven enabler of the Bush administration -- or who spent the last several months identically railing against Jay Rockefeller -- suddenly changed their minds completely when Barack Obama announced that he would do the same thing as they did.
Plainly, I didn't call Hoyer "an evil, craven enabler of the Bush administration" (though take out the word "evil" and I'm more than happy with the quote). One of the article's authors, John Breshahan, emailed me early yesterday afternoon, unsolicited, and wrote:
Glenn: I misquoted something from a Hoyer-FISA piece that you had done, and I apologize. I will fix it online and run a correction. I am doubly sorry because I have been closely following your FISA pieces . . . . So apologies again. John Bresnahan, Politico.
I noted that yesterday and said I appreciated it -- but then the quote stayed up all day and still continues to be there unchanged, with no correction appended anywhere. I believe it was an honest and run-of-the-mill mistake of the kind we all make, but to leave it up for almost 24 hours unchanged and uncorrected, knowing that it's wrong, is not exactly a model of journalistic diligence, to put that mildly. [UPDATE: Politico emailed this morning to say that a technical glitch prevented the correction from being posted yesterday and apologized again. The erroneous quote has now been deleted and a correction appended to the end of the article].
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.