A friendly FISA folly

Far be it from me to stand in the way of a healthy dose of Corner bashing. I've been known to enjoy doing a fair amount of Corner bashing myself. But this post from Kevin Drum misses the important details deep the weeds.

Look, if [the FISA amendments are] that important, there's a simple answer: pass the bill without telecom immunity. Then come back and introduce immunity in a separate bill. If you've got the votes for it, fine. If not, too bad. I'm against immunity myself — though hardly hellbent on the subject — but whichever way the vote went, in the meantime we'd have the FISA extension and surveillance could continue normally.

But that's not on the table. The supposed grownups in the GOP are, apparently, perfectly happy to play around with "life and death" if it's in the service of a bit of demagogic brinksmanship over telecom immunity. Why?

This is about half accurate (specifically the half that accuses the GOP of engaging in demagogic brinksmanship). Then there's the other half. It's just not the case that there's "a bill" from which Democrats can strip immunity and then suddenly everyone's happy. There's the House's bill, which doesn't have an immunity provision, and then there's the Senate bill, which does have such a provision, but also has all sorts of other objectionable elements in it, including an ambiguity about whether FISA is the exclusive legal framework by which the government is allowed to conduct surveillance--basically, it allows George Bush to excuse any FISA breaches by arguing that he has the power to wiretap under, say, the Authorization for the Use of Military Force against Terrorists.

Chris Dodd's efforts to strip immunity were admirable, but they also had the unintended side-effect of distracting observers from these other, more dangerous provisions. Strip immunity from the Senate bill, and it's still a very, very bad bill. With a six year sunset. By not just abandoning all the work it did on its own bill, and instead working towards a compromise in conference, the House is (one hopes) seeking to update FISA as appropriate without bailing out the telecos or sending our civil liberties out to sea. And letting the current amendments expire is in fact a much, much more responsible option before House leadership than is passing the Senate bill, with or without immunity.

As it happens, the president has threatened to veto any bill that doesn't grant him every last power enshrined in the Senate legislation, and any bill that doesn't grant immunity, and any bill providing for less than six years of authority. Republicans in the Senate would likely do him the favor of filibustering any such legislation before it ever came to that. And House and Senate Republicans have each--in an extremely transparent attempt to cow Democrats into accepting the president's terms--blocked requests from Reid and Pelosi for brief extensions to the current amendments. So, unless the president is really serious about updating the bill (and therefore caves), there are really only two ways forward on the issue: the Senate's way, and no way.

I should add that Andy McCarthy's characterization of the situation is an unsurprisingly giant crock of shit. "I am hearing from several sources that the House is planning to recess on Friday without taking up the Senate bill. That would mean the lapse of our surveillance authority at midnight." It would, of course, mean no such thing. It would mean that one extremely narrow category of warrantless surveillance would once again require a warrant--the same warrants they required six months ago, which can be acquired three days after surveillance begins. The game here is simple: Ask for a small policy improvement, throw in the kitchen sink, obscure the difference between the two, call it all essential to national security, then threaten to veto anything that doesn't have both.