Democrat Bill Foster won a special election in the 14th congressional  district of Illinois, Dennis Hastert’s old district. One of the key aspects of Foster’s campaign against Republican Jim Oberweis that was encouraging was that Foster took a very strong stance in favor of the Constitution and against retroactive immunity. In a statement to Matt Stoller of Open Left, Foster said:

The President and his allies in Congress are playing politics with national security, and that’s wrong.  Nobody is above the law and telecom companies who engaged in illegal surveillance should be held accountable, not given retroactive immunity.  I flatly oppose giving these companies an out for cooperating with Alberto Gonzalez on short-circuiting the FISA courts and the rule of law.

The campaign was much more about Iraq than the Constitution, but the lesson is clear. Glenn Greenwald notes:

The lesson here is unavoidably clear. There is not, and there never has been, any substantial constituency in America clamoring for telecom amnesty or warrantless eavesdropping powers. The only factions that want that are found in the White House, the General Counsel’s office of AT&T and Verizon, and the keyboards of woefully out-of-touch Beltway establishment spokesmen such as Fred Hiatt, David Ignatius and Joe Klein. If/when the Democratic Congress vests in the President vast new warrantless eavesdropping powers and grants amnesty to lawbreaking telecoms, it won’t be because doing so is politically necessary.

Principled stands are politically effective, on any issue, in any district. Olberweis used tired attacks on Foster’s patriotism and peddled the false notion that Democrats are stabbing the troops in the back by wanting to end the Iraq war. Sorry guys, dolchstosslegende and shredding the Constitution just isn’t going to resonate with voters this year.

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.

Glenn Greenwald breaks word of the House “compromise” legislation that will effectively give the Bush administration everything they want, closely in line to the bad Senate legislation. It seems that the House will pass a Title I bill that has some minor changes from the Senate bill and set up a separate vote for retroactive immunity, which will pass.

The plan of the House leadership is to pass this specific bill in the House, send it to the Senate (where immunity will be added in by the same bipartisan Senate faction that already voted for immunity), have it go back to the House for an up-or-down-vote on immunity (which will pass with the support of the Blue Dogs), and then compliantly send it on to a happy and satisfied President, who will sign the bill that he demanded.

The bill was drafted with the participation of, and input from, Nancy Pelosi and Silvestre Reyes, at the very least.

There has been one recurrent theme coming from Democrats in both the House and Senate since last October. “Trust us. Let the process take the course.” Every step of the way, when things look bad and objections were raised, we’ve been told that contrary to indications suggesting otherwise, Democrats really were doing everything possible to stop immunity, increase oversight, and pass good FISA legislation. And yet, as this process continues behind closed doors, the course of legislation has lead further and further away from the rule of law.

The House had ample opportunity to stand up to both the Senate and the Bush administration. All they had to do was hold ground on their principles and stand by the RESTORE Act. Now we find that they have embraced a process that will assure the passage of retroactive immunity alongside what looks to be a FISA bill that expands executive power to spy on Americans.

With regard to what changes Greenwald reports will come in the new House legislation mean, I will simply point out that the House passed a very effective, rule of law and civil liberties oriented bill with an admirable Title I last November. It was called the RESTORE Act. By modifying the Senate version of Title I legislation in this compromise, the House has effectively abandoned the best intelligence legislation we’ve had either body of Congress pass since the Protect America Act took effect.

No doubt we will be told by Democratic leaders of the House and Senate that this was the best they could do and, for some unknown reason, they had to pass something. I will be impressed if anyone defending this process and this result can say with a straight face that they have not completely and totally failed to honor their oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.”

Update:

Glenn updates his post with this note:

This report was based on unimpeachable sources close to the whole process. I’m getting a little bit of pushback already from others claiming that the plan and strategy of the House Democratic leadership is more nuanced than what I’ve described, and that the bill they will promote is better (the statement: “A House aide disputes both the specifics of the draft and the presumed strategy”). I’ll be happy if that’s true (though I doubt it), and hopefully, the fact that there’s pushback at all means this is still a vibrant, ongoing process that can be affected. I’ll be happy to add any statements, denials and the like.

I agree. It’d be great if Glenn’s sources were wrong, but I remain concerned about how the ostensibly pro-Constitution leaders (which thus far in this process has included Pelosi, Conyers, Leahy, Hoyer, and sometimes Reyes) are dealing with not just a solidly anti-Constitution Republican caucus, but Rockefeller and the Blue Dogs.

Update II:

TPM Muckraker is reporting that the oversight will be somewhat improved from what Greenwald reported. Some of the differences are nuanced, but other parts are clearly better including a ban on blanket warrants. On the key issue of retroactive immunity, it looks like Greenwald’s reporting is correct.

Of course, just because the House bill does not have retroactive immunity does not mean that the final bill to arise from the process will not. As the Politico reported last night, House Speaker Nancy Pelosi (D-CA) now favors a strategy of “ping-ponging” alternatives back and forth between the two chambers. What that means is that the House could vote out a bill that does not contain retroactive immunity, but that the Senate could vote to add it back in, sending that back to the House, where such a modified bill might pass with the help of moderate Democrats. Of course, such a strategy could also lead to stalemate, as the Politico points out.

The likely outcome of the ping-pong process, as Greenwald had reported, would be immunity being added by the Senate and receiving an up or down vote in the House. With Blue Dogs voting with the GOP, that would make it almost certain that immunity would pass.