Why Did Democrats Yield on Telecom Immunity?

I worked to help the Democrats take control of Congress in 2006 with no illusions that they would pass any legislation to reign in George Bush. Such a things would clearly be impossible unless they had a veto-proof majority. I did hope, however, that they would at least block any further laws upholding executive abominations and expose the ones that had already taken place. My advice (and expectation) was that the Democrats should start with easy things like defense contractor abuse and corruption, then move into more controversial fields like warrantless wiretapping and manipulation of intelligence at the beginning of the Iraq War, and save the rights of detainees (i.e., torture and indefinite surveillance) for last.

I based this set of priorities on two things. First, public opinion seemed to be easier to mobilize over wiretapping (which could threaten the privacy of citizens) than over GTMO (which involved only non-citizens). Second, prior to the 2006 elections the Democrats actually had blocked a law authorizing warrantless surveillance, while acquiescing to a law effectively legalizing torture.

Well, my expectation/recommendation appears to have been wrong.

Congress has actually done quite well in exposing the use of torture and the high-level approval of such techniques. But they have failed to conduct any meaningful investigation of warrantless wiretapping, and have now caved and given the Bush Administration not only all the wiretap powers it wants, but retroactive immunity for telecoms to insure that Administration misdeeds are never revealed. The obvious question is, why.

To review, in August, 2007, Congress, led by Democrats, passed a bill granting vastly expanded powers of warrantless surveillance, but imposing a six-month sunset provision and not including telecom immunity. George Bush thanked them, but said he also wanted legislation making these powers permanent and granting retroactive immunity to telecoms. In February, 2008, with the increased powers set to expire, Bush made clear that he would veto any extension that did not include retroactive immunity. Congressional Democrats defied him and allowed the increased surveillance powers to expire. National security was not endangered, they explained, because all warrants granted under the expanded regime would remain in force for a year.

So why are the Democrats caving now, after making such a show of defiance earlier? Several explanations have been offered.

Congress is concerned about national security. While there was no emergency in February, in August expanded warrants will start expiring and place the country in danger, so legislation has to be in place before August. The trouble with this theory is that it does not explain telecom immunity. If national security truly requires expanded powers of surveillance, Congress could always pass an extension of the expanded powers into the next Administration, but without retroactive immunity. Then George Bush would be the one endangering the country if he vetoed such a law.

Democrats are afraid of being labeled as soft on terrorism. This explanation does not make a great deal of sense. All evidence is that the Democrats will have a landslide victory in Congress with the next election regardless of what they do. Nor does there appear to be a great groundswell of public opinion in favor of telecom immunity. Indeed, Democrat Bill Foster won the seat of former House Majority Leader Dennis Hastert while openly opposing such immunity, despite his Republican opponent's attempts to paint him as soft on terrorist. (Foster went on to vote against the current bill).

Conservative "Blue Dog" Democrats revolted, demanding telecom immunity, and the leadership went along to preserve party unity. This explanation would make a good deal more sense if it were not so obvious that the Democratic leadership favored telecom immunity from the start. It looks like an excuse.

Democrats expect to win Presidency in 2008 and are therefore promoting executive power. This may be so, but it does not explain why the Democratic leadership would be so eager to pass a bill saving the Republican President considerable embarrassment for past actions.

The Democratic leadership is eager to hush up what happened for fear their own complicity will be revealed. This is my own opinion. The most obvious objection is that the Democratic leadership was equally complicit in torture, yet Congressional hearings are revealing more and more about torture. The difference (I believe) is that a growing body of evidence about torture is being revealed regardless of what Congress does. The Supreme Court, human rights advocates, McClatchy News and others have revealed too many embarrassing details to be concealed. The best Congress can hope to do since torture is being exposed anyway is to jump on the bandwagon. The details of warrantless surveillance remain a mystery that the Democratic leadership in Congress would like to keep buried.

And then there is the question of why Obama went along. Obama now is in much the same position McCain has been in for most of the election, and John Kerry was in during the 2004 election. Caught between the base and independent voters, Obama, like McCain and Kerry before him, is trying to avoid doing anything that could be controversial. This means not taking a firm stand on anything and preferably not having any coherent position on any controversial issue. In short, the key to being elected our leader is to avoid exercising any leadership during the election campaign!