Did House Dems cave on FISA? Not really

Shortly before the August recess, much to the disappointment of those who take civil liberties and separation of powers seriously, enough congressional Dems backed down to Bush administration pressure to pass a revised FISA bill that granted Bush expansive new surveillance powers. At the time, the bill had a short shelf-life — it would expire in six months.

Democratic leaders said they’d take up a new bill much sooner than that, correcting the rush-job from before the recess, and the details of their proposal are starting to emerge. Would the Dems cave again? If you read the NYT report, it looks like progressives will be disappointed again.

Two months after insisting that they would roll back broad eavesdropping powers won by the Bush administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency. […]

A Democratic bill to be proposed on Tuesday in the House would maintain for several years the type of broad, blanket authority for N.S.A. eavesdropping that the administration secured in August for six months. […]

“Many members continue to fear that if they don’t support whatever the president asks for, they’ll be perceived as soft on terrorism,” said William Banks, a professor who specializes in terrorism and national security law at Syracuse University and who has written extensively on federal wiretapping laws.

Sounds discouraging, right? It would be, except the NYT report is misleading — and the bill isn’t nearly as dispiriting as the article would suggest.

The first clue came from Rep. Jerold Nadler (D-N.Y.), one of the most reliable allies of civil liberties in Congress and one of the staunchest critics of the rushed August bill. Describing the House proposal, Nadler told the NYT, “It is not perfect, but it is a good bill. It makes huge improvements in the current law. In some respects it is better than the old FISA law.”

If Nadler’s satisfied, the bill couldn’t possibly be that bad.

Better yet, House Judiciary Committee Chairman John Conyers (D-Mich.) and House Intelligence Committee Chairman Silvestre Reyes (D-Texas) have unveiled their bill, which they’ve named the “RESTORE Act,” (Responsible Electronic Surveillance that is Overseen, Reviewed, and Effective Act) and said in a statement:

“Earlier this year, President Bush signed a short-term surveillance law that exposed innocent Americans’ phone calls and emails to warrantless intrusion. Speaker Pelosi immediately asked us to fix this problem and to ensure court oversight while preserving our ability to fight against foreign threats. This bill shows that it is possible to protect civil liberties and fight terrorism at the same time.”

So, what are we to think here? The NYT report makes it sound as if fearful Dems are caving on surveillance again. House Dems sound as if they’re righting August’s wrong. Who’s right?

You can read the bill summary, but I’d argue the Times piece was unhelpful. As Glenn Greenwald explained in a very helpful post, “[A]t least thus far, from everything I can tell, the picture is more complicated and less depressing than this NYT article suggests, and the defeat is not yet a fait accompli. To begin with, the bill to be proposed today by the House Democratic leadership actually contains some surprisingly good and important provisions.”

At Daily Kos, pontificator also tries to correct the Times piece.

It implied that the House FISA bill, introduced today, is a capitulation. It is not. It is a strong bill that protects civil liberties and provides for oversight. What the NYT article suggests is that certain Democrats believe that they will ultimately have to give up on that bill because Bush will demand capitulation. This is worrisome, but we are not there yet.

We have a good bill before the House. The ACLU and the progressive caucus were consulted, and many in the progressive caucus are comfortable with it.

I’m happy to defer to Glenn’s and pontificator’s expertise, but as far as I can tell, the bill would be a big step in the right direction. Among other things, it improves the role of the FISA Court; it places checks on surveillance of people inside the U.S.; and does away with the idea of providing the telecoms with retroactive immunity on warrantless surveillance.

If you woke up and saw the NYT piece, and began cursing Dems under your breath, you can stop. The bill is actually encouraging.

CB: first sentence – “must” should be “much”.

I hope the NYT article is wrong. Wouldn’t be the first time!

  • I hope so as well, though the article made it sound as if the Senate version would be even more to the administration’s liking and who knows what will emerge in a compromise?

  • Sorry, but I’ll believe the Democrats haven’t caved when I see it. I am fast heading for political drop-out mode because our elected representatives don’t seem to have any gumption when it’s needed.

  • the defeat is not yet a fait accompli.

    Give ’em time. Show me one time they held to their guns.

    Just one.

  • When are the Democrats going to realize that regardless of what they do, they’ll be portrayed by the right wingers as weak and soft on terrorism? The right wing will always attack.

    Once they realize this, they can stand up for principles instead of perceptions.

  • A cynical, but not unrealistic prediction: Senate Republicans will filibuster all FISA bills (like the supposedly not so bad House proposal) until just a few days before the six-month deadline on the current atrocity. At that time, the White House, CIA, NSA and GOP operatives will start leaking terrorist threats, hyping the fear, crying “if we don’t extend the FISA bill permanently, people are gonna die!” And once again the Democrats will crumble and accept the White House demands, including retroactive immunity for telecoms (still without knowing what they did).

    I’d love to be proven wrong.

  • “Give ‘em time. Show me one time they held to their guns.

    Just one.”

    Okay, here’s a list:
    1) SCHIP
    2) Minimum wage
    3) Ethics reform
    4) The Webb bill to give our soldiers more rest between postings in Iraq.
    5) John Bolten

    How many more do you want? (And believe me, there are more.)

    I’m disgusted with people who complain the Democrats are a “do-nothing” party. The Senate Republicans are the problem, not weak-kneed Democrats.

  • I’m with Racerx – even in the same Salon article, Glenn poses the alternate possibility:

    “It is definitely possible that this is all just deceit, that House leaders introduced this bill strictly to placate their Progressive Caucus and their base and that they have no real intention of fighting for these provisions, but instead will give Bush what he wants once Mike McConnell starts accusing them of Helping the Terrorists and they begin negotiating in secret again.”

    It’s clear to me that given time, either the Conyers/Nadler faction will win, or the Hoyer/Emmanuel capitulation crowd will win. They are on two sides of a fence, and we will have to work and hope for the former to prevail.

  • Surprise! Surprise!

    Today the White House released a report saying that al Quaeda is trying to put agents in the U.S.

  • One thing you don’t mention CB is that this still gives Bush blanket authority to wiretap with a blanket court order without oversight. A new bill is coming to the floor from Holt that will bring this amendment more in line with the fourth amendment. I urge readers to call their reps and ask them to vote against this measure and wait for the Holt amendment to come to the floor because it will help to reign in Bush’s power grab.

  • Isn’t it sad that when we read an article like that, our first response is to beleive it? If the Democrats in Washington want to figure out why that is, all they need to do the next time they’re in the bathroom in the vicinity of a mirror is open their lying eyes and take a look at what they see. These spineless jelly blobs have done it to themselves.

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