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Today's Must Read
Here's a guide for future intelligence chiefs who want to take a shortcut around the law. Start out with a genuine problem. Propose a genuine solution, but build into it a bit more leeway for intelligence collection. Negotiate slowly and deliberately. Then use the threat of a terrorist attack at the end of the congressional session to ram through an evisceration of the problematic law, carving out from it all meaningful protections for American citizens. Watch a stunned opposition acquiesce.
Both the Washington Post and the New York Times present that general outline to explain how the Bush administration gutted the Foreign Intelligence Surveillance Act earlier this month. As reported earlier, the FISA Court ruled in March -- the Post provides the date -- that foreign-to-foreign communications, previously unprotected under FISA, required warrants for surveillance as they passed through U.S. communication switches. Admiral Michael McConnell, the director of national intelligence, saw the National Security Agency "losing capability," in the words of one intelligence official, due to a surveillance backlog generated by the Court ruling.
Now, in the event of a genuine emergency, FISA allows for a 72-hour grace period for the NSA or the FBI to conduct surveillance before applying for a warrant. So it's safe to assume that surveillance in these cases was more run of the mill -- listening in to generate leads for further surveillance and subsequent investigation. Tweaking the law to overcome that obstacle was uncontroversial when McConnell proposed it in April to the Senate intelligence committee. According to a White House official quoted by the Times, "there was no real argument on the need for a fix." Talks proceeded through the spring.
The sticking point, according to the Post, was that Sen. Jay Rockefeller (D-WV), the committee chairman, wanted the White House to provide documentation on its 2001-2007 warrantless wiretapping efforts:
While the exchange was not a quid pro quo, the senators essentially said, "You give us the documents we want, and we'll give you the legislation," according to an administration official present, who said the response was "no." McConnell argued that the Democrats were "looking backwards" and that he was the "forward-looking guy," a witness said.
Famously, the Bush administration defied a subpoena on the surveillance program issued by the Senate Judiciary Committee.
While the talks subsequently stalled on the FISA bill, the administration expanded its demands for what the bill needed to include. To prevent another 9/11, McConnell argued, Congress needed to relent on several key provisions of FISA. No warrant should encumber intelligence collection. Any foreign-to-domestic communication should be fair game. And such surveillance shouldn't just target terrorists, but rather "all foreign intelligence" -- a critical expansion of the so-called Terrorist Surveillance Program, which the president has repeatedly stated involves "known" members of al-Qaeda. Yet in interviews with the Times, McConnell still says that the problem was "I'm sitting here signing out warrants on known Al Qaeda operatives that are killing Americans, doing foreign communications," even though his fix is much broader.
In order to pass the legislation as the Congressional calendar drew to a close, McConnell invoked the prospect of another terrorist attack on the U.S., something the recent National Intelligence Estimate pointed to in sobering language. One administration official called the heightened threat environment "a forcing function" for the bill, but says the timing of the NIE relative to the FISA restructuring was "fortuitous," rather than a deliberate strategy. Democrats clearly believe otherwise, according to the Times:
“There was an intentional manipulation of the facts to get this legislation through,” said Senator Russ Feingold of Wisconsin, a Democrat on the Intelligence Committee who voted against the plan. ...Representative Jane Harman, Democrat of California, said the White House “very skillfully played the fear card.”
“With the chatter up in August,” Ms. Harman said, “the issue of FISA reform got traction. Then they ran out the clock.”
Both pieces portray the rest of the negotiations in late July as essentially foreordained after that. The Democrats, wanting to go into the Congressional recess talking about Iraq instead of FISA, were determined to get the issue off the table by passing a bill. McConnell, backed by Vice President Dick Cheney and the Justice Department, turned their requests into non-negotiable demands, even as the Democrats moved toward their expanded positions. After an acrimonious last-minute debate, the administration got nearly everything it wanted, with the exception of grandfathering in liability protections for telecom companies that aided the warrantless surveillance efforts before 2007 and a six-month expiration date on the whole bill.
Whether the Democrats will scale back the Protect America Act of 2007 is anyone's guess. They vow to amend the law, but Feingold noted to the Times that the administration's strategy was vindicated:
The White House, Mr. Feingold said Friday in an interview, “has identified the one major remaining weakness in the Democratic Party, and that’s its unwillingness to stand up to the administration when it’s making a power grab regarding terrorism and national security.”
If Feingold is correct, the administration will have every incentive to hold out for renegotiating the Act until the six-month sunset deadline. That will put the issue right in the thick of the presidential primaries, in which two of the leading Democratic contenders are Senators. And a winning strategy for the White House may very well be vindicated yet again.
Comments (19)
Anonymous wrote on August 13, 2007 9:42 AM:This is a blend of classic bureaucratic tactics.
Political scientists call one of them the "camels nose" - get your nose under the tent and just keep coming further and further in.
They call the other one the "garbage can" model - a critical problem arises and anyone and everyone with a "solution" throws it in - and you get what you get.
Cheney is a master of the Federal bureaucracy, which means he's behind this.
Becky wrote on August 13, 2007 10:58 AM:I am sick and tired of politicians who always think of their own interests than that of our country. It is unbelievable that they were in such a hurry to get home for the August vacation that they were hurried into voting for the changes in FISA law. If they are stupid enough to think the American public is so dumb as to not see through this, then they are too stupid to be in Washington representing us!!! I believe we should vote them all out...Democrats and Republicans...and start all over, and we need to keep doing this at each election. Then they won't have time to fall into the old patterns of self-serving tactics.
Becky wrote on August 13, 2007 11:03 AM:Congress is making fools of the American public. They need to realize that we can see through their tactics. They deal in self-service only. If they are so stupid as to think we cannot see through their shenanigans, then they are too stupid to be representing us. They were rushed through the changes in the FISA law because they wanted to go home for their August vacations. What a bunch of losers!! We need to vote them out at each election, and keep doing this so they will not have time to learn the ins and outs of their offices. They couldn't wait to get home to finagle their way back into congress.
johnnydoughey wrote on August 13, 2007 12:03 PM:Apparently, writing, faxing, calling, and emailing our representatives, although thoughtful, has little effect anymore. It only worked up until the time these guys decided they were self employed.
Perhaps we, as voters, need to begin to rethink the way politics is really accomplished. We can hollar all we want, but Congress (and the Senate) are no longer listening. Voters are nothing more than a nuisance to them. The only time they pay any attention to the common folk is when they need something... like reelection. At this time, and for this one reason, they do their dog and poney shows, attempting to justify reelection votes.
THEY know who the important people are when it comes to getting to stay in office.
Perhaps "We the People" need to recognize that fact and begin to put our efforts into the same direction. We all have friends and neighbors, business associates, etc. and are capable of influencing them. Surveys show that only 50% of adults ever watch the news. This means that up to half of the folks we know aren't even aware of the problems facing this nation.
How's this for a suggestion: We jot down just a couple of ways our Reps are destroying our democracy... ethics and Surveillance, for example. We then simplify them down to the point it can be related to local levels.
"Joe... you know those kids that just got killed because we still have a two lane road instead of a highway? Congress just decided their own pork is more important. How about I help you register to vote right now and take you down on election day?
Discuss the earmarks and the benefits of voting in a new guy. Write his name down and "campaign" to him a couple of times before election. Answer questions and keep him on track when he hears the incumbants lying to him on the tube (if he starts to pay attention). Take him to the polls on election day.
This, in essence, is what the politicians are doing... and it gets them elected. We have a much greater influence with our friends and neighbors than they have.
The alternative is to just keep trying to influence our congressman. However, we have already learned too well how much influence we have with them... they already HAVE their friends... they're called lobbiests.
Meanwhile, Joe, whom we have not contacted, will either stay at home and not vote, or go to the polls and vote with two criteria in mind:
TheraP wrote on August 13, 2007 12:09 PM:1. Does he belong in my party?
2. Do I recognize his name?
Plus ca change, plus la meme chose...
These guys know how to do an end run. And that's the rub.
Anna Belle wrote on August 13, 2007 12:49 PM:I agree, Congress, and especially Democrats, cannot slough this off on Bush. It was their job to hold the line, vacation and their irrational fears be damned. They got pwned and they know it, and now they want to spin it. I contacted my Rep before and after the vote, and afterward, after he voted to gut FISA, I thanked him for finally giving me the will to pursue third party options. The Democrats are obviously not going to protect our rights or our Constitution, and I'm not voting for anyone who will do anything less than that. I copied Nancy Pelosi on that letter.
I have been voting for 18 years, and with one fatal exception (Ann Northrup's initial run), I always voted Democrat. They have lost my lifelong commitment, and I will no longer trust their name. Oh, I'll still vote Democrat if we can get a true liberal like Feingold or someone, but that's unlikely here in So. Indiana. Baron Hill sure won't get my vote ever again, except in the case of extraordinary redemption.
Code word: Regret, as in how I feel about my vote for Hill this last time around.
anonymous wrote on August 13, 2007 1:11 PM:Fool me once . . .
Dems were fooled when Bush lied to them about Iraq and terrorism in 2003, but they ate it up again in 2007, despite many other intevening incidents of administration lying on terrorist threats and the war.
Pelosi and Reid make a mockery of the idea that you are supposed to learn from your mistakes.
They have a "kick me" sign on their behind, they've known about it for years now, and they refuse to remove it.
714Day wrote on August 13, 2007 2:08 PM:To some degree, the analysis of the chicanery involved is academic. Anyone with 3 or 4 brain cells still firing knows that this administration and it's henchpeople have lied their butts off since day 1 to have their will prevail. They have sacrificed our children's lives for it and the lives of countless Iraqis.
anonymous 2 wrote on August 13, 2007 2:10 PM:It was the congress that allowed it. Only the diagnosable would've subverted the constitution in this manner and put a shoulder into the further erosion of the fundamental liberties we all once considered to be a birthrite. If we knew better than this, congess did, too; THEY betrayed us, like the hypocrites they are.
God help us all.
Wish I could agree with Sen. Feingold that security policy is the "one major remaining weakness" in the Democratic party. Instead, I'd say that as long as the Democrats aren't making strong affirmative arguments on any of a number of issues--WHY we should require the executive to seek warrants when eavesdropping, WHY we should not torture, WHY sound tax policy is important--the party will be on its heels waiting to be shoved backwards by various Republican attacks.
Anonymous wrote on August 13, 2007 2:48 PM:There has been much finger wagging and posturing among the Democrats, but in fact, they are complicit in the disastrous foreign policies of the Bush administration. They have now passed a bill legitimizing warrantless wiretapping. The liberal blogs have focussed too much on the incompetence and criminal activity of the Bush Administration and the Republicans, and not enough on the failure of the current Democratic leadership to take corrective action.
What reason do we have for voting for the Democrats in 2008 as in response to the Republicans? Will things be any better under a President Hillary, a House Speaker Nancy, and a Senate Majority leader Harry?
The Democratic Party needs a thorough house cleaning, and many of the current incumbents should be thrown out of office.
A number of Democrats have been speaking out: Chris Dodd of Connecticut, Kucinich, Russ Feingold of Wisconsin. This is where the future of the Democratic party, and the country, belongs. The hands of the DLC on the reigns of the country would be a disaster.
Dawn wrote on August 13, 2007 3:03 PM:No wonder Rove is resigning - how could he ever top this stunt? His work here is finished.
kilo wrote on August 13, 2007 3:30 PM:Our leaders are scum that are only interested in becoming more powerful. I mean WHAT THE FUCK IS WRONG WITH GETTING A WARRANT FROM A JUDGE? WHAT POSSIBLE THING COULD HAPPEN WHERE A JUDGE IS COMPLETELY UNNECESSARY?! I hate our intelligence community. I'm afraid this will never be fixed and our "privacy" is a thing of the past. We are now "public entities" where are rights are sacrificed at the will of disconnected politicians. And the worst thing about it is...we can't do anything about it. Sure we can vote, but whats the point in voting when everybody justs wants to juggle around your rights like it was a play toy. Everybody is just gonna vote for Hilary or Romney and nothing will change. It'll be the same bullshit over and over again because we never learn. We never mature.
Middle Earth wrote on August 13, 2007 5:44 PM:I think we who criticize the spineless Dems who we so recently sent to congress and who cave at a moment's notice should look around at our fellow Americans. Fear is our middle name, folks. Congress remembers how terrified Americans were/have been since 9/11. The Jersey barriers that surrounded courthouses and post offices across the Homeland have just recently come down. Al Qaeda was as close as the nearest wheat field in South Dakota. We, as Americans, were ready to sell the farm for pennies on the dollar to the first two-bit dictators who promised us safety above all else.
Which, of course, is how George and Dick got reelected, and how a Repub will get elected next year. face it: Americans, as a people, are dumb and scared, just like the Germans in the 1930s and the Japanese in the 1020s. Just imagine what will happen when a dirty bomb goes off in a trash can in front of an Abercrombie & Fitch in some suburban mall. Martial law? Bring it on and pass the dessert. In such a situation, Americans will want George to have one of his chats with God becuase we will surely need saving.
So when you good, smart folks on this blog expend hot air criticizing Democrat congressfolks, just look at your neighbors down the street in Des Moines and Kansas City and Atlanta and know that they are well represented in Congress. They've all got brown undies.
pointus wrote on August 13, 2007 6:49 PM:Well said, Middle Earth. Not all people are ridiculously stupid, just the vast majority. I'm sure as f*** glad I don't have kids: this world is spinning down the crapper.
Anonymous wrote on August 13, 2007 9:34 PM:Aw shucks. They don't need to worry none about the 6 month sunset clause.
"Cuz, ya see, any action they start during the enactment time of the bill carries forward in full force...even if the bill is somehow withdrawn.
So, what we NOW need to do is come up with a bill that works in a democracy AND specifically refutes the powers that we just granted them.
Now, how many of y'all figure that's going to happen? Hmmmm....
OH, by the way. The best part was putting Gonzo in charge of keeping the program legal.
Frank Krasinski wrote on August 14, 2007 9:00 AM:There's no excuse for that one Democrats. That was just plain dereliction of duty!
I have to believe that what the democratic congressional lawmakers heard in their intelligence briefings by McConnel scared the hell out of some of them. They, the democratic cowards folded. It gives new meaning to "yellow" ribbons.
Anonymous wrote on August 14, 2007 1:01 PM:To have Gonzales as the point man for wiretap legality concerns is an unforgiveable allowance by the democrats. The word oxymoron is strained in characterizing that collosal blunder.
They will not be able to keep this pandora's box from releasing its cache.
There will be many cowards along the way including all sorts who have taken the oath to protect and preserve the Constitution, but there will be a few, always a few who will become enraged and will then move this to its full exposure.
I do see a 5-4 verdict...with Kennedy being the decider and then all flood gates open, it will smell awful
johnnydoughey wrote on August 14, 2007 6:08 PM:Although this is terrible, it is only one of the attrocities our elected officials are subjecting the world to...
In the past, our society has set different penalties for different injustices. The two that stand out are torture and murder. If you or I were to believe someone deserved to be tortured or murdered, we would, deservedly, spend much of the rest of our lives in prison.
If, however, we took a different route and HIRED someone else to torture and/or murder someone we felt deserved it, we would most likely either spend the rest of our lives behind bars or be executed for the crime because moral people find this much more monstrous...
Our congressmen call this political maneuvering...
And we reelect them...
We are descending below the criteria for being human beings...
George Bradford wrote on August 15, 2007 2:42 PM:I know this is late, but nonetheless, in politics in Washington all things are related.
A cursory review revels that, politically, nothing happens in Washington, in isolation and the bigger the event, the closer its relationship to something else. Therefore, I think that it is utterly foolish to say the Spy bill was rammed down the dems throat. The republicans got their bill. We got Rove! Very soon, you will hear the other shoe drop so brace yourselves. We finally have professionals running the congress.