Wednesday, December 19, 2007

Now What?

Christopher Dodd has blocked the vote on retroactive immunity for telecoms until next year, but that merely postpones the ultimate showdown.

To recap, the FISA court is believed to have ruled last August that wiretapping of foreign-to-foreign calls passing through cables in the US required a warrant. Everyone agreed that this was a serious threat to national security, and that a law was needed exempting such calls from the need for warrants. Congress originally prepared such a law but, under Administration pressure, passed modifications to FISA that may or may not have allowed warrantless surveillance of all international calls into and out of the United States. But Congress also made a 6-month sunset provision on the law and sought to placate critics by assuring them that tighter restrictions could be enacted in six months.

In the clear light of hindsight, the six-month sunset turns out to have been either a tactical error or a clever ploy by people hoping to leverage even greater concessions to the Administration. The law sunsets in February, and our national security is genuinely in danger if we require a warrant to listen into foreign-to-foreign calls. George Bush has vowed to veto any bill that does not grant retroactive immunity to lawsuit to telecoms (the only truly effective way we have right now of finding out just what the Administration has been up to), let alone any bill that would shrink his powers of warrentless surveillance. In effect, he is holding our national security hostage.

"Anonymous Liberal" has an excellent post explaining the effectiveness of such a veto threat:

Under our constitutional framework, the presidential veto is an enormously powerful weapon, particularly when it is being wielded by a lameduck president who has long ago bottomed out in the polls. The Democrats, even if they were to act in lockstep unity, do not have the votes to override a veto. This puts them in a particularly disadvantageous position when it comes to legislation that,for whatever reason, has to pass.If no bill needs to pass, the Democrats can simply pass their preferred legislation (assuming there's no filibuster) and use the President's veto as campaign fodder. No progress is made, but at least no affirmative damage is done and maybe someday there won't be a Republican president standing in the way. But when it comes to mandatory appropriations bills and other necessary pieces of legislation, doing nothing really isn't an option. When confronted with a presidential veto, the Democrats must choose either to pass a bill the president will sign or reap the political consequences of doing nothing.
. . . .

The same dynamic is at play in the FISA debate. If it hadn't been for the FISA Court's ruling earlier this year (the text of which has still not be released publicly), Congress could afford to do nothing. But, at least according to published reports, the Court ruled that certain foreign-to-foreign communications that pass through U.S.-based switches require warrants before being intercepted. Because all sides agree that legislation is necessary to address this narrow issue, Bush is able to use that need as leverage to demand a FISA reform bill that contains all sorts of other bells and whistles, including telecom immunity. If Congress were to provide him with a bill, like the House bill, that doesn't give him everything he wants, he'd veto it and claim that Congress wasn't providing him with the tools necessary to protect the country from terrorists. He'd hold out for the bill he wants, even if it it means genuinely harming our ability to detect terrorist threats.

It should be noted, however, that our security is not at stake to the degree AL would suggest. Although the bill sunsets in six months, it also authorizes the government to seek approval from for its procedures, and such authorization will remain in effect for one year after approval, even after the law sunsets. In other words, if the Administration gets approval from the FISA court in February, 2008, shortly before the law sunsets, it will continue to have authority to wiretap international calls without a warrant until February, 2009 (i.e., past the Bush Administration). So even if Bush vetoes legislation that does not include retroactive immunity, the actual danger will not begin until the next administration. Congress will not have increased our vulnerability to terrorism by refusing to give Bush what he wants. It will merely have increased its own vulnerability to demagoguery, a bigger chance than most Democrats are willing to take.

Even so, in the clear light of hindsight, perhaps it would have been better after all not to have created a six-month sunset Perhaps it would have been wiser from Congress to make the sunset run some time after the end of the Bush Administration and gambled on a more reasonable President the next time around.

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