Not A Tough Call
by digby
Sometimes you have to wonder if certain Democratic leaders have taken some sort of medication that renders them incapable of taking a clear, principled stand on anything anymore. This FISA bill is not difficult, really it isn't. It is incomprehensible that that our lawmakers cannot devise a process that ensures that the government issues warrants as the constitution requires, even through a secret court, before or after the fact, to eavesdrop on American citizens. It's simply ridiculous to think that the executive branch must have the right to do it without any interference from anyone.
In any case, we know why this administration wants this power, and it has nothing to do with terrorism. It's not as if it's a secret. They have believed since the 1970's when it was first instituted, that the FISA court was an encroachment on executive power and they were determined to get rid of it, no matter what. Former justice department official Jack Goldsmith quoted Cheney's top aide David Addington saying:
We’re one bomb away from getting rid of that obnoxious [FISA] court.
Cheney's unitary executive theory has nothing to do with the War On Terror. His beliefs grew out of his experiences during the Ford administration, when Osama bin laden was playing tiddly winks in Saudi Arabia. Terrorism and modern communication technology are the excuses they've used. They are not the real reasons they want these powers and it should give any thinking lawmaker pause that they continue to relentlessly insist that they should have them.
Charlie Savage, author of the book Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy , described it this way in a recent Frontline documentary called Cheney's Law:
It was the day after inauguration. It was the very first meeting of the White House Counsel's office, the new White House legal team. ... They gather in Alberto Gonzales' office on the second floor of the West Wing to meet each other and get started.
Alberto Gonzales comes in; he greets them; there's pleasantries. Then he gives them marching orders that he says that he's conveying from the president to them, to the legal team: Don't just do your jobs; do your jobs with a mandate.
And there's a twofold mandate. The first is, move fast on getting judicial confirmations in the pipeline. We're going to get conservative judicial-restraint-oriented judges confirmed, and we're going to fill a lot of vacancies on the federal bench that have been held open the last couple of years because of partisan politics within the Congress. ...
The second mandate, though, was something of a surprise. It was: The presidency has been weakened by this president's predecessors; it's time to protect and restore presidential power. You are to seek out every opportunity to expand presidential power as they arise in the next few years. ... Alberto Gonzales used in that meeting the phrase, "You are to ensure that this president passes on this office to his successor in better shape than he found it." ...
But as months passed and time progressed, Cheney took increasingly public ownership of this idea, that this was his idea that had come from his experiences in the Ford administration and so forth. ...
So all this secretive nonsense about warrantless surveillance being necessary to protect the nation from terrorists should logically be viewed with extreme skepticism. It's not as if we aren't aware of this other agenda. And yet the congress is apparently willing to rubber stamp this unconstitutional power grab and even give retroactive immunity to gigantic corporations which willingly went along in the past, despite the fact that their high priced legal talent had to know it was clearly illegal.
One might have expected even a Republican congress to at least be concerned about protecting its own prerogatives, but they proved to be completely supine in the face of Dick Cheney's onslaught. Considering the authoritarian nature of the modern conservative movement, that was not entirely surprising. But we had high hopes for a Democratic congress. Surely they would not allow the dramatically unpopular Republican executive to continue to assert this radical doctrine. Sadly, we have been very disappointed in that. Apparently, a majority of Democrats are either cowed by the Bush administration or persuaded that the nation truly does want a dictatorial executive with few restraints. Either way, they are betraying the constitution just as surely as the Bush administration is.
Even more dispiriting is their eagerness to grant amnesty to the corporations that have been working hand in glove with the administration to help them break existing laws and assert this privilege, in at least one case before 9/11. There is no other way to see that than a craven sell-out to political contributors. (What's that we keep hearing about the "culture of corruption?")
So, what can we do? Obviously, we can support Chris Dodd's Senate hold on the legislation, which for reasons about which we can only speculate, the senate leadership seems determined to thwart. Dodd has taken a principled stand on this for constitutional reasons. But he has also specifically and unequivocally said he will filibuster any bill that confers retroactive immunity for corporations because it rewards these companies for breaking the law and forecloses the one avenue by which we might someday be able to determine just exactly what this administration did during that period when nobody thought to stop them.
Dodd should be able to count on his fellow senators, particularly the Democratic presidential candidates, to support him if it comes to that. This is bigger than politics as usual. But sadly, it is not clear they are going to. Joe Biden gave an unequivocal yes when he was asked. Obama and Clinton both hedged, using very unsatisfactory lawyerly language. It is extremely disappointing that they cannot clearly stand up for the constitution and against amnesty for political contributors on something this consequential.
This is not a difficult question for people of principle. The answer is either yes or no:
Will you support a filibuster of any bill that grants retroactive immunity to telecoms for enabling the Bush administration to spy illegally on Americans?
Call the Clinton and Obama offices/campaign and ask them:
* Clinton Presidential: (703) 469-2008
* Clinton Senate: (202) 224-4451
* Obama Presidential: (866) 675-2008
* Obama Senate: (202) 224-2854
And by the way, if either of them think these authoritarian, executive powers are a good thing --- that they will be useful for their own purposes should they become president --- then I certainly hope they aren't depending on the same blind support from the base of the Democratic party that Cheney and Bush received from theirs. We aren't subjects, we are citizens, and we don't work that way.
Update: Obama decides to speak in clear, unambiguous English. How refreshing:
"To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies."
Update II:
From Michael Bérubé in the comments:
you have to wonder if certain Democratic leaders have taken some sort of medication that renders them incapable of taking a clear, principled stand on anything anymore
Funny you should say that! It's called Insulor®, and it was developed by Rahm Emanuel Laboratories in 2002. Taken regularly, it leads patients to believe that "complex" issues like civil liberties do not motivate voters, and in high doses, it can induce mass delusions, such as the belief that a "strong stand" on "terrorism" will be an electoral winner for Democrats and insulate them (hence the name) from attacks by Republicans.
Possible side effects include loss of privacy, civil liberties, constitutional amendments, elections, respect, hair, memory, and eyesight.
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