You've Gotta Know When To Hold It

by digby

So I see that Dodd Mania is sweeping the blogosphere today in the hopes that he will put a "hold" on the FISA legislation. I'm for it, and if Dodd will agree to do it, I'd be very inclined to become a very serious Dodd fan. Actually, I already am. With few exceptions he's my kind of Senator.

I understand how difficult it is for a Democrat to get out front on one of these boogeyman votes. The rightwing vultures slaver over the opportunity to blame everything from terrorism to male pattern balding on Democrats anyway, and the prospect of another terrorist attack and the inevitable cacophony of shrieking castigation that would follow has to keep many a lawmaker up at night.

But that's the problem for Democrats, right there, as we've all been saying ad nauseam for years now. Every time they capitulate on a matter of principle they prove the Republicans' central thesis, which is that the Democrats won't fight. (Josh Marshall used to call it the "bitch slap theory.") And even worse, when they support the Republicans with their draconian undemocratic actions, they get no credit and will be blamed anyway. There is no upside to it.

Of course, that's just one moving piece of this puzzle. The big money issue in the FISA bill is the telecom retroactive immunity for committing crimes on behalf of this lawless admnistration. Evidently, some staffers went up to the hill yesterday to look at some cherry-picked documents that show that the big Telcoms were just babes in the woods who didn't know nothin' bout birthin' no wiretaps:

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-W.Va.), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

Such a demonstration, which the bill says could be made in secret, would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants. Bush had repeatedly threatened to veto any legislation that lacked this provision.

Spencer Ackerman sums it up nicely:

The first question this raises: This "legal directive" is surely part of the pile of documents the Senate intelligence committee had access to about the legal foundations for the warrantless surveillance program. But its legal validity is unknown -- indeed, Jack Goldsmith, the former head of the Justice Department's Office of Legal Counsel, called the legal basis for the program up until 2004 the "biggest mess" he'd ever encountered. Will the Court's "secret" review of telecom compliance with the directive include an assessment of the soundness of that directive? We'll see what the text of the bill says.

I don't actually know if it's even true that these senate staffers had access to this particular "legal directive." From what I understood, it was the Judiciary Committee who were going to be allowed to see the legal findings, not intelligence. As far as I can tell, the staffers who have now certified the absolute necessity for the telcoms to receive immunity have done so because they were convinced that the telcoms had received assurance from the government that their actions were legal. But, as Ackerman points out, we still don't know if the "directive" itself was legal and it seems somewhat unlikely given that 30 or so members of the Justice department were willing to resign over at least some aspects of the program as a whole. Of course, we can't know any of this because the administration believes it has the right to make laws in secret and execute them and the congress now believes it needs to immunize powerful corporations which were involved in these secret programs, the details of which they nothing about, after the fact.

What seems to have happened is that the Bush administration told the mighty telcom corporate lawyers that they needn't worry their little heads about all that nasty legal business, they'd take care of it. And the sleepy lil' corporate lawyers stuck their thumbs in their mouths and burrowed into Daddy's lap for a nice bedtime story, like the good little political contributers they are.

I have no idea if Chris Dodd or any of the other senators running for president (or others, for that matter) have the nerve to wage this fight. The Republicans have managed to seamlessly continue their patented red-baiting campaign by creating a pavlovian response among Democrats whenever they utter the words "terrorist attack." Sadly that probably means they are going to control the foreign policy agenda for the foreseeable future unless we figure out a way to change this dynamic.

One obvious way is to do as Atrios suggests today:

One thing I think Democrats have lost is the ability to get out in front of an issue and try to persuade people that their position is the correct one, and then use their position in Congress to make it happen.


Update: Oh, and not that it matters, of course, in the world's oldest democracy, but the polling actually doesn't support the Republicans on this.

From The Hotline:

MELLMAN GROUP (D): Give Us Liberty Or Give Us Death
© National Journal Group, Inc.

A Mellman Group (D) poll; conducted 10/11-14 for the ACLU; surveyed 1000 LVs; margin of error +/- 3.1% (release, 10/15).

Should The U.S. Gov't Have To Get A Warrant From A Court Before Wiretapping The Conversations That U.S. Citizens Have With People In Other Countries?

Yes 61%
No 35 %

How Important Is It For Congress To Take Action Now To Require The Gov't To Get A Warrant Before Wiretapping Int'l Phone Calls And Emails Of U.S. Citizens?

All Dem GOP Ind
Very/smwht impt. 75% 88% 57% 78%
Not too/not impt. 22 9 39 12

Bush Handling Terrorism

Excellent/good 41%
Fair/poor 56%

Bush Handling Warrantless Wiretaps

Fair/poor 50%
Excellent/good 35%

Traditionally, The Law Has Required A Warrant From A Court For Each Person The Gov't Wants To Wiretap. Some People Want To Permanently Change This Law To Allow Courts To Issue Blanket Warrants For Wire-Tapping U.S. Citizens That Would Not Have To Name Any Specific Person.

Do You Favor Or Oppose Allowing Courts To Issue Blanket Warrants?

All Dem GOP Ind

Favor 31% 23% 39% 34%

Oppose 61 72 52 59

Which Of The Following Statements Do You Support?

Congress Should Give The Phone Companies Amnesty From Legal Action Against Those Companies For Selling Customers' Records To The Gov't. 31%

Citizens Who Believe Their Rights Have Been Violated Should Be Free To Take Legal Action Against Those Phone Companies And Let The
Courts Decide The Outcome. 59%

Are Each Of The Following Statements A Very Convincing Reason To
Vote Against A Member Of Congress?

The MoC voted to cut education funding 51%

The MoC voted to cut healthcare for kids 48%

The MoC voted to give retroactive amnesty to telecoms
for laws they have broken by selling private phone
records of U.S. citizens to the gov't 35%

The MoC voted to keep the U.S. troops in Iraq 34%

The MoC voted to make it harder to stop terrorism by
requiring the gov't to get a warrant every time
they wanted to wiretap the phone of an American
they thought might be helping the terrorists 28%