FISA Capitulation: Bad Policy, Bad Politics

by on June 21, 2008 · 32 comments

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.

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