We will likely know next week whether or not Glenn Greenwald’s reporting on Democrats caving on FISA is substantively correct or not. He has said it comes from unimpeachable sources and while some in the House are denying it, it seems others are corroborating it.

The entire process on this legislation since the Senate passed the SSCI bill last month has taken place behind closed doors. At first, when the Republicans were not at the table, we received regular press releases blasting them from the Democratic leadership in Congress. Lately the only reports we’re getting have been more negative. House Intel Chair Silvestre Reyes expressed openness to retroactive immunity this past weekend on Wolf Blitzer. Then the Washington Post reported that a “compromise” would involve splitting retroactive immunity off for a separate vote from Title I FISA provisions, which would lead to its passage. Speaker Pelosi expressed what may or may not have been a strategic critique of focusing on retroactive immunity when other provisions were also important. With today’s report from Greenwald, we saw what is effectively a predictable offshoot of what had been reported as going on behind closed doors over the last week-plus.

There is a pervasive “Why?” running through my mind. Why would a Democratic majority in both houses of Congress choose to work on legislation that is contrary to the wishes of a majority of their caucus, a majority of the American people, and the US Constitution? Why would they compromise in such a way as to expand executive powers at a time when the Bush administration is continuously revealed as having no regard for the authority of the legislative branch nor the civil liberties of American citizens? Perhaps most importantly for the mechanics of this legislative process, why would Democrats negotiate a compromise when Republicans aren’t at the table?

Last month House Majority Leader Steny Hoyer said:

“Democrats continued today to work hard on crafting a new FISA bill that will keep our nation safe and protect our civil liberties. We were disappointed that not only Congressional Republicans but also the Bush Administration refused to join us in these critical negotiations. This refusal simply puts partisanship and politics ahead of our nation’s urgent national security interests.”

But what was that in reference to? At the time, Democrats from the House and Senate Intelligence and Judiciary Committees and their staff were negotiating a new FISA bill while Republicans boycotted the meetings. That is, the three committees that rejected retroactive immunity and weak oversight provisions (House Intel, House Judiciary and Senate Judiciary) were negotiating with the Senate Intel Committee. It seems that the Democrats were trying to come to a consensus before the Republicans sat down to negotiate.

Given that multiple news reports in the last week or so have suggested a compromise that included voting on retroactive immunity (and ping-ponging so the Senate adds it in and the House then approves it is in the same ballpark in my book), I would have to guess that Jay Rockefeller has held very firm in his anti-Constitution stance. The process that we’re seeing is one that will produce retroactive immunity, unless pro-Constitution Democrats find a way to derail the process. The good Dems who oppose immunity have not been able to get Rockefeller to move.

What has surely added to Rockefeller’s unwillingness to budge is the January 28th letter from 21 Blue Dog Democrats stating their support for Rockefeller’s SSCI bill and their willingness to vote with Republicans to ensure that it and retroactive immunity pass in the House. Rockefeller has effectively had these House Dems and a similar cohort in the Senate to join Republicans to get immunity and a bad bill passed. Between the two chambers, conservative Democrats have given Rockefeller the ability to get bad legislation serious consideration to the point that the process may move forward and allow immunity to become law.

There have been some good Democrats in this. Pelosi, Conyers, and Hoyer have certainly been a refreshing change from Harry Reid. But if Rockefeller and the Blue Dogs get their way, the leadership of Pelosi, Conyers, Hoyer, and Reyes must be questioned. If they couldn’t get around Rockefeller, why would they move forward with Rockefeller? Why not leave FISA as is until 2009? FISA worked for over 30 years to keep us safe and the PAA was only initially passed to excuse past Bush administration lawbreaking with the Terrorist Surveillance Program. The sunset of the Protect America Act has not left us in danger, as its warrants will be valid up to a full year after the sunset.

I’ll admit, there’s a certain extent to which this is Monday morning quarterbacking. When this legislation left the Senate last month, I wasn’t calling for no action on it, but rather for Democrats to push through the RESTORE Act. But that doesn’t change the fact that if passing good legislation is not possible, the best strategy would be not to pass any legislation. We’re seeing this argument play out in the work environmentalists are doing against the Lieberman-Warner bill.

This is a complicated, shady process with strong adversaries working against Democratic interests. I don’t know what will come out of these negotiations, but I hope the leadership has the sense to recognize that “Do No Harm” is the best operating principle when it comes to how legislation impacts the Constitution and the rule of law.

Update:

Just as I identify Rockefeller as a key obstacle, Rockefeller’s office says he won’t agree to the deal reported by Glenn Greenwald and Paul Kiel.

Wendy Morigi, Sen. Jay Rockefeller’s (D-WV) spokeswoman, tells me that Rockefeller would not agree to a bill that fits the above description, but could give no specifics. All she could say was “we continue to work with the House to try and find agreement and resolve the differences between the House and Senate bill.”

My guess is Rockefeller wants to be 100% assured that retroactive immunity will pass. We’ll see if Rockefeller gets his way or if the Democratic leadership finds a way to work around him. And no, ping-ponging the bill to require votes on RI does not count as them overcoming Rockefeller.