FISA Face-saving

Since the new FISA bill was announced last week, Democratic leaders have been desperately trying to spin the legislation as a hard-won compromise rather than a capitulation. Time has an article on the FISA bill that’s a classic of the genre:

A compromise deal to extend the federal government’s domestic spying powers, passed by the House on Friday and expected to sail through the Senate next week, has drawn attacks from both sides of the political spectrum. The right is unhappy at concessions made to protect civil liberties; the left is furious that the Democrats allowed the domestic spying powers to be extended in any form.

There’s just one problem with this framing of the issue: outside of the Democratic leadership and a few elite journalists, no one believes it. Conservatives sure don’t. If you look at what actual conservatives are writing about the deal, you’ll find most of them crowing in victory. National Review’s Ramesh Ponuru, for example, says “It sure looks like [House Democrats] got rolled.” National Review’s Andy McCarthy calls the deal “the best we could have hoped for under the circumstances.” Coverage of the announcement on Human Events quoted no outraged conservatives. Paul at Power Line calls it “a decent FISA deal that’s likely to pass.” John McCormack at the Weekly Standard gives a thumbs up, as does Michelle Malkin.

And then there are the Republicans in Congress. Virtually every Republican in the House voted for the bill (compared with fewer than half the Democrats), and Kit Bond said that “I think the White House got a better deal than they even had hoped to get.”

In short, I’m hard-pressed to find even one person on “the right” who is opposing the bill. Virtually every civil liberties advocate opposes the legislation; virtually every partisan for executive power is happy with it. That is not a compromise. The deal was an unqualified victory for the White House, and everyone except the Democratic leadership knows it.

The article also suggests that Pelosi capitulated because “Democrats still trail on national security, and that could hurt them in Congress.” It seems to me that this represents a fundamental misunderstanding of the politics of national security issues. Democrats are perceived as weak on national defense largely because they’ve failed to articulate a clear position on the issue and stick to it. This spring, they staked out the principled (and in my view, correct) position in favor of judicial oversight and against retroactive immunity and got some good press for it. Now, they’re backing off from that view. Were they wrong back in March, or are they unwilling to stand up for their convictions now? Either way, the performance doesn’t inspire confidence in their judgment.

The article rather badly mischaracterizes the immunity provisions of the legislation:

Under Administration proposals, the telecoms would have received full retroactive immunity from lawsuits brought by civil libertarians alleging they violated the Fourth Amendment by complying with Administration requests to conduct wiretaps following 9/11. In negotiations with Pelosi’s office, the telecoms offered a compromise: Let a judge decide if the letters they received from the Administration asking for their help show that the government was really after terrorist suspects and not innocent Americans.

If the legislation passes, the judge won’t decide if the administration was “really after terrorist suspects.” The judge will simply determined whether the telecom companies received a letter from the executive branch stating that the programs were legal. And we already know that the telecom companies received such a letter, because it says so in a report from the Senate Intelligence Committee. There is therefore absolutely no doubt that if the legislation passes, the lawsuits will be dismissed. The changes to the immunity provision were a face-saving exercise, not a substantive compromise.