A FISA explanation

[wogget]

Old news, I know, but I see this issue constantly brought up.

I see Obama's flip-flop on FISA continually brought up as a stab in the back to the American people and I must admit this was my first reaction to it too. During the first round of FISA fighting back in January and February, I was into it big time calling all my congress critters, emailing them multiple times and even donating to Dodd's Presidential bid. That we won round one came as a surprise to many of the leaders of the push. Glenn Greenwald wrote at the time that he thought a win was unlikely. And yet the Democratic Leadership of the House (yes- Nancy Pelosi) engineered a courageous victory just what we all wanted.

Then a couple of month go by and the whole thing goes down the tubes. Defeat clutched from the jaws of victory. Is it capitulation to the powerful Telecom Lobbyists? Can Democrats just not keep their shoulders up when facing down the president? What gives?

I do not want to appear as an apologist or a conspiracy theorist. I'm just trying to find a theory that reconciles Democrats upstanding original behavior with what happened in the end. My theory is unconformable but consistent with the people we have in our government right now.

A couple of Basic assumptions underpin this theory:

-- The Democrats first priority is to win the White House and to extend their majorities (such as they are) in both chambers

-- The Democratic leadership, including Obama, wanted the Telecom Immunity provision struck from the final bill but could not marshall enough of their caucus to support the bill without it (for whatever reason). Their second best option was to mothball the bill, but this proved unwise for reasons I will explain.

-- The Republicans first priority is to cover their asses (and the asses of their financiers) for the crimes of the past few years. This was the reason for the Telecom Provision obviously.

-- The Administration is not above using its control of the homeland security apparatus for political ends. If anyone doubts that they can look at the Color coded security announcements used around the 2004 Democratic Convention to mute Kerry's bounce and manipulate the public sentiment toward fear.

A Hypothetical:

The Executive branch is charged with protecting the country from harm. They claimed that without the changes they wanted to FISA they were hindered in that. Lie or not, the president says it to the country, so it stands as "true" to the majority of the American public. The Democrats mothballed the changes, called the bluff and told the president to pound sand.

Now imagine we fast forward to October 4th, one month before the election. Information pointing to an imminent terrorist threat comes across the desk of the president. What are his incentives? If he does the right thing stopping the attack, it shows that his position was a lie (not that the information would be made public, but still. . .) If he ignores the warning signs and allows the attack to go through, he is able to claim he was hobbled by the Democrats. His party wins the presidency and probably retakes the house and senate.

The reason that the democrats "caved" on Telecom immunity was a realization that the Administration was in the drivers seat when it comes to protecting the country. Without a FISA compromise, and with right wing blogs running terror clocks, the Democrats had set themselves up for an October surprise like none before it. Like it or not Bush-co has shown NO COMPUNCTION about using all resources at their disposal to get what they want. The scenario I mention is treasonous. There are even more treasonous scenarios still you can imagine if you try. If covering up their crimes is the first priority though, torpedoing the Democrats chances in October with a bombshell like this would do it.

Obama, Pelosi and Reid knew that if left unresolved Cheney/Bush would use FISA in the same cynical ways they used the Terror alerts back in 2004.

[On the Road]

1. One Factor in the Decision Was Probably Political Immunization

Obama is likely to win in November. But if he had voted against 'terrorist surveillance', FISA were allowed to expire, and there were another terrorist attack before the election, he would lose. Period.

But there is a more important factor which has led to endless confusion and outrage: The ACLU and other progressive organizations oversimplified and misrepresented the conditions of the bill.

The ACLU said the bill allows unrestricted warantless surveillance of telecommunications traffic. It plainly does not (read Section 702, which is where most of the controversy is.) The bill allows the government to define a surveillance method in which one end of the communication is a 'non-US person' located overseas who has been authorized by a court as a legitimate target of terrorist surveillance. It is technically true but misleading that there are no 'warrants' issued, since the bill provides for 'targets' rather than individual persons or phone numbers. The bill actually increases protections for Americans traveling overseas, who used to be fair game for espionage.

The ACLU may be legitimately afraid that a FISA judge will rubber stamp blantantly illegal targeting methods and that the court proceedings are not open. They may fear abuses of targeting procedures that are not based on a single person or phone number. They may object to emergency procedures which add an extra four days before filings with the court have to be made. Many of their concerns involve shades of gray, slippery slopes, fears of how provisions may be abused under a secret court. Most of them do not lend themselves to moral outrage useful in generating public outrage. They still IMO have an obligation to state their actual concerns rather than a stereotype, especially if the result is to depict the more progressive candidate as guilty of cowardice, graft, or expedience.

Obama's position was that he didn't like certain provisions of the bill (nobody does), but that it met his minimum criterion of putting foreign surveillance under judicial review. Along with a lot of other Democrats, Obama obviously has different expectations of how the surveillance will be conducted under the bill. The vote in no way justifies the charges of "capitulation" or "cowardice" that were flying around. Obama's position was reasonable and I agree with it.

In general, I don't care what interest groups say to whip up the base. But this amounts to swiftboating the best candidate the party has had in a long time. That is really maddening.