Tim Lee

FISA Capitulation: Bad Policy, Bad Politics

Barack Obama is supporting the FISA bill. That pretty much seals it: Russ Feingold and Chris Dodd may filibuster, but we already know that there are enough Democrats willing to break ranks to reach cloture, and with the party’s figurehead on board, none of them are likely to switch sides. Obama says he’s going to try to strip out the immunity provision, but this is obviously so much political theater. If he were serious about doing that he’d be saying he planned to oppose the “compromise” until the immunity provision got stripped out. The fact that he’s committing himself to support the overall bill whether or not it comes with immunity is proof that he doesn’t really care about getting rid of immunity. And why would he? A few angry liberals may decide not to give to his campaign, but he’s already got a lopsided fundraising advantage over John McCain, and in the long run he probably wants to stay on the good side of a powerful lobby that could prove useful to him once he’s in the Oval Office. Same goes for Steny Hoyer: Obama will need his support when it comes time to nationalize the health care system, so why risk alienating Hoyer just to make Glenn Greenwald happy?

I’ve talked plenty about why this deal was bad policy on this blog, and you can get more from Julian if you’re interested, but at this point I’m more interested in the politics of the deal, since it turns out that’s all that mattered. It’s important to remember that when you’re in the majority, you control the calendar and so hardly anything goes to the House floor unless you want it to. Nancy Pelosi could have continued to keep the FISA issue bottled up in committee for the remainder of this Congress. Hell, Harry Reid could still refuse to take up the House legislation, although he has made it clear that he won’t. So despite Reid’s protestations to the contrary, he supports this deal.

Why? Not only have Hoyer, Reid, and company sold out our civil liberties, but they’ve angered their core supporters as well. Glen Greenwald has a gem of a poll showing that while Congress is wildly unpopular with everyone, the nominally Democratic Congress is currently polling substantially worse among Democrats than among Republicans. And that was before this FISA “compromise” was announced. This kind of spinelessness is likely to depress donor and volunteer enthusiasm come the fall.

But I think the even worse problem, from Obama, Reid, and Pelosi’s perspective, is that this means the return of the narrative of Democratic weakness on national security issues. As I wrote back in March, the Democratic Congress got some of its best press this Spring in the wake of its successful showdown with the White House:


The president had claimed that the expiration of the PAA would be a catastrophe, most Democrats had acted like it would be a catastrophe, and so that was how most journalists had covered the story. Ars, of course, has thoroughly covered the Protect America Act’s flaws from the outset, but mainstream news outlets focused mostly on the politics of the debate, rather than the substance of the legislation. A typical write-up of last August’s vote in the New York Times, for example, focused on the way the president had “outmaneuvered” the Democrats. The story did include a couple of quotes from Democratic leaders criticizing the legislation, but they seemed like an afterthought, buried near the end of the story after a discussion of the terrorism issue as an “enduring challenge” for Democrats. By stampeding the Protect America Act through Congress, Democratic leaders acted like they didn’t really believe their own arguments.

Press coverage changed quickly once Democrats became willing to demonstrate, with their actions as well as their words, that the president was exaggerating about the danger of allowing the Protect America Act to lapse. When House Democrats first announced that they would allow the PAA to expire rather than rush the Senate bill into law, the New York Times story on the announcement stated matter-of-factly that “The lapsing of the deadline would have little practical effect on intelligence gathering.” Editorial boards around the country weighed in on the Democrats’ side, with the Denver Post praising the Democrats for “standing up to President Bush’s fear mongering.” Even the conservative Washington Times ran a news story on the day of the PAA’s expiration citing several “intelligence scholars and analysts” (including yours truly) who said that the expiration of the PAA “will have little effect on national security.” This has always been true, of course, but until senior Democrats started saying so—and acting like they meant it—few journalists saw any reason to second-guess the White House’s version of the story.

Unfortunately, there are signs that the House leadership is moving back toward capitulation. Although House Democrats have refused to budge on the immunity issue, press reports indicate that the latest version of the House bill would give the president broader warrantless wiretapping powers than last November’s Restore Act. If House Democrats capitulate, they can expect a return to process-oriented media coverage focused on the Democrats’ strategic miscalculations and political weakness rather than the substance of the surveillance issue.

I can’t say I’m particularly pleased to be able to say “I told you so.” The Washington Post says that Obama “sought to walk the fine political line between GOP accusations that he is weak on foreign policy — Sen. John McCain (R-Ariz.) called passing the legislation a “vital national security matter” — and alienating his base” and that his vote was “marks something of a reversal” from his position in February. The Wall Street Journal says that Obama’s “support of the bill could also buffer him from attacks on the right–and specifically from rival John McCain–that he is soft on national security policy.”

We are, in other words, right back to the narrative where being “strong” on national security means trashing the constitution. Within that frame, Democrats are always going to lose because they’re never going to be as enthusiastic about Constitution-trashing as the Republicans (well, I hope so anyway. Bill Clinton did his best). So by conceding the premise and saying, in effect, “we can trash the constitution too!” the Democrats were setting themselves up for future political problems. Because if the Democrats are carbon copies of the Republicans on national security issues, why not go for the real thing?

This is doubly disappointing because until now Obama has been a master at re-framing national security debates to get out of this box. Unlike John Kerry, he has refused to shy away from a confrontational posture on foreign policy issues. He’s shown a willingness to say he has a better foreign policy vision, rather than simply insisting he can be just as tough on the terrorists as the Republicans are. He could and should have done the same with FISA, taking the opportunity to explain why warrantless surveillance isn’t necessary to protect us from the terrorists. But it seems he, along with Steny Hoyer and Harry Reid, chickened out. So it’s back to Republicans being tough on national security and Democrats defensively insisting that they, too, hate terrorists more than they love the constitution.

June 21, 2008 | Comments |

Viewing 8 Comments

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    This is only speculation, but perhaps due to the fact that the candidate knows more about the threats we face than you do, he is wisely changing his tune. (According to commentator and Bush biographer Bill Sammon, Bush has been giving briefings even in this early stage to both Hillary Clinton and Obama on national security, so that either could campaign responsibly and also be prepared more fully for the task, should either be elected.)

    Of course, the problem with Obama is not that he's black. The problem is that he's green. I think his election during a period of economic crisis and war is unlikely. But at least the President is trying to bring him up to speed on the existential struggle of our generation, looking ahead to the possibility of his winning.

    And perhaps, when all was said and done, the information Obama's been getting from the White House was more convincing than the theoretical arguments of those who oppose the FISA bill.

    In the broader view, there may be reasons beyond political weakness or spinelessness to account for the capitulation of Democrats. True, they don't want to face blame if a terrorist event should occur that could have been prevented but for their foot-dragging. But also, it might just be they are interested in going balls out to make sure that event is detected and prevented in the first place. Perhaps they don't want to ever have to answer this question: How many lives is it worth to protect that particular principle of privacy? You could call that weakness. Or you could call it a regard for the lives of Americans.
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    Eric, though I believe you're being genuine, you've almost perfectly parodied the patsy to government officialdom playing the secrecy card. Your logic amounts to: "I don't know, therefore it is." And it forces you to cast aside all doubt or skepticism, relying on politicians and career bureaucrats to be the angels we know they are not.

    Please take a moment to review the meaning of the word "existential," and then try to explain how the government officials you place your trust in continue to live, work, and educate their children in 'target city' Washington, D.C. With their superior information, don't you think that they would run for the hills in the face of this "existential" threat? In fact, they know something you don't - that we are safer than they say.

    Maintaining FISA as is would not hamper the ability of the national security bureaucracy to access information it needs to secure the country. It would expose the bureaucracy to oversight, and it would allow the investigation of past lawbreaking. There is not a serious security rationale for amending FISA.

    Senator Obama is "wisely" caving on FISA (in only a political sense) because not doing so would play into Senator McCain's political strength and Democrats' political weakness - war and national security.
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    Obama and McCain are in very different positions than the rest of us, since it makes absolutely no difference what they really want to do. One of them will be in charge of the intelligence system, and they'll be able to modify the system as they choose.

    So for Obama, it's easy to say screw it, I'll do what's politically viable this time so I can get in that office and clean it up the right way later. Likewise for the Democratic congress.

    But we don't have that luxury. So, until they actually acquire these offices and make the appropriate reforms, all I can say is "Bad Democrats."
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    I'm less confident than you are, SAG, that Democrats would fix things up once in power, but I think you're right to look inside their political motivations rather than just assume noble, neutral public-spiritedness on the part of our elected officials.

    I don't mean to dwell on your comment, Eric, but it occured to me after responding to you yesterday that President Bush's briefings of Democratic candidates could be tainted by political motivations. And even if they represent strictly careful truth as seen inside the White House, that doesn't mean that they should be credited. The national security bureaucracy will tend to produce exaggerated threat assessments both to justify its budgets and power, and potentially to push the president's hand and gain his assistance in its efforts to prevent exposure of past law-breaking.
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    Jim:

    I share your skepticism, to a point. That point starts when I reflect just how mis-managed the GWB administration has been. Obama could hardly be worse and will probably be a few thousand times better. In particular, I think we here in America underestimate the effect that Obama as president will have on the image of America abroad, especially if the Republicans are rejected by a large margin.

    But the whole thing at present, especially with the fake 'FISA' debate smacks of a good ole by network, where those in "opposition" don't really oppose. They just seem to be going through the motions of 'opposing'

    I want confrontation; I want competition; I want debate and a wide ranging debate at that. Why can't I have that? Why do I have to go to Gleenn Greenwald's blog to find it? Why can't I see it in the NYT?

    That's my biggest problem with Obama--time and time again, his views are too establishment, when we need revolution, in thoughts at least.
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    Repeal FISA is up and running. Anyone who wants to is welcome to sign up and become a Poster on it. The purpose of the blog is to organize a drive to repeal the FISA laws and all laws that pardon or give immunity from prosecution anyone who has violated the Constitution during the Bush Administration.

    That is why we want everyone to be able to Post so they can start a conversation about an idea they have to make this happen.

    Stop on by and check it out. By all means leave a comment and sign up to blog with us as we figure out what needs to be done to return our Fourth Amendment Rights and our rule of law.

    If you have a blog already and you become a poster we will link to your site.

    http://repealfisa.wordpress.com/
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    Uh, can we reconsider that name? Nobody actually wants to repeal FISA -- least of all civil libertarians, given that it was a huge improvement over the status quo in 1978. Actually, I take that back: There are people who want to repeal FISA, and they're the nuts who think the president's powers should be totally unrestricted the instant he whispers the words "national security". It's punchy, but I think you want to look for a different clarion call.
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    Why is it whenever Democrats diagree on this issue its framed as capitulation, in political terms? Perhaps he thinks that, except for the immunity it's a fairly good bill.

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