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.