Democrats Determined to Capitulate on Warrantless Spying

In February, the House Democrats won a key victory in their struggle with the Bush administration over amending FISA. Republicans had tried to stampede House Democrats into supporting the Senate’s bad spying bill by sending the bill to the House at the last minute and blocking a temporary extension of the Protect America Act that would have given the House time to have a full debate about the Senate legislation. An exasperated House leadership decided to call the president’s bluff and let the Protect American Act expire. As I wrote at the time, this was the right decision on the merits; the Protect America Act eviscerated judicial oversight of domestic spying activities, and its expiration would leave the president with ample spying authority. Indeed, the president said as much in 2001, saying that the Patriot Act’s revisions to FISA “ ‘recognize the realities and dangers posed by the modern terrorist.”

To be sure, some adjustments to FISA would be beneficial, and the House has twice passed FISA reforms that make the necessary changes. These bills have been stopped by presidential veto threats.

February’s lapsing of the Protect America Act was a victory for Americans’ civil liberties. It was also a political victory for the Democratic party. Once House Democrats began staking out a clear, pro-civil-liberties position and backing up their words with actions, press coverage became a lot more favorable. Whereas earlier press coverage had described Democrats being “outmaneuvered” by Republicans and facing “enduring challenge” on the FISA issue, the coverage began to change once they began standing up to the president. Suddenly, the Democrats were “standing up to President Bush’s fear mongering.” Newspapers reporters began talking to experts (including yours truly) who pointed out that the lapsing of the PAA would have little impact on the Bush administration’s ability to spy on terrorists. It turns out that politicians who speak and act with conviction get better press coverage than those who repeatedly capitulate to their political opponents.

So the House Democrats’ apparent desire to capitulate now leaves me scratching my head. If press accounts of the impending “compromise” are accurate, the president and lawbreaking telecom companies will get essentially everything they’ve asked for. Rather than ordering the courts to dismiss spying lawsuits, the courts will instead be ordered to dismiss the lawsuits if the president asks them to. That’s not much of a difference.

House Democrats won February’s FISA showdown, and they passed a solid FISA bill in March. They ought to stick to the sensible position they’ve held for the last nine months: yes to judicial oversight of domestic spying, no to retroactive immunity for lawbreaking telecom companies.