Friday, October 19, 2007

The Battle Of FISA

....did not turn out quite like the Democrats thought it would.

Let's return to the beginning - which, in this case, was the first Tuesday in November, 2006, when the Democrats regained control of Congress for the first time in twelve years. Now, at long last, they were going to right all the wrongs - maybe that should be "left all the rights" - "clean up Republicans corruption," and bring Bushitler to justice, featuring quitting the Islamist War and dismantling, on "civil liberties" grounds, any and all post-9/11 counterterrorism measures. Buh-bye, Patriot Act; sayonara, SWIFT anti-terrorist financing program; and so long, NSA terrorist surveillance program.

True, the latter two were functionally destroyed by the New York Times two years ago, but the gutted shell of the NSA TSP was still in place. But it wouldn't be for long once the Dems collected the gavels. And, of course, ditto Bushitler and Darth Cheney.

As has been chronicled over the course of this year, and to my admittedly great surprise, the Donks haven't been able to realize many of these ambitions. Hell, they haven't been able to attain ANY of them. Not out of any particular GOP gallant heroism, but because of disunity in their own ranks due to dissatisfaction from their vulnerable members with the left-wing extremism forced on and championed by their leaders in equal measure. Oh, sure, they passed a minimum wage hike, and they've picked up their own corruption orgy right where they left it off in 1994, and they've engaged in endless harassment of President Gump; but of that dismal litany of double-dealing perfidy, only the minimum wage hike was something on which they ran last year, and it was a tangential plank at best.

This does much to explain Congress' subterranean (and sub-Bushian) approval numbers. It also serves as a reminder to us ingrained pessimists on the Right of something that we, ourselves, learned the hard way back in 1995: relatively small congressional majorities do not a partisan hegemony make, and presidents - even lame duck ones - are NEVER "irrelevant."

The Dems couldn't pull the plug on the war because Dubya vetoed the supplemental appropriations bill for Iraq and Afghanistan last spring that was loaded with defeat/retreat poison pills. Crazy Nancy and Dirty Harry weren't close to being able to override, so they caved. And when the White House went all-out for legislation bringing the Foreign Intelligence Surveillance Act (the Carter-era piece of anti-intelligence meddling back under which the Donks wanted to shove the lessons of 9/11) into the 21st century and by so doing, repair some of the damage done by the NSA TSP's exposure, the outcome was the same - and then some.

Well, almost. The "Protect America Act" had a six-month sunset provision, meant to enable the Dems to make a big election year stink over it next February. Why they thought they could make hay with it then when they ran away from it two months ago is anybody's guess, but I suppose for defeatists, hope always springs eternal.

Yes, there was a lot of rhetorical grandstanding to their kook-fringe-nutter base, and the fundraising to match. The Speakerette herself vowed to "revisit" FISA early next year and promised her supporters a different result.

And she was right, in a sense. The Democrats' anti-FISA efforts since Crazy Nance blinked in the first week of August have indeed produced a different result: throwing in the towel four months early.

It began on the Senate side on October 9th:
Two months after insisting that they would roll back broad eavesdropping powers won by the Bush Administration, Democrats in Congress appear ready to make concessions that could extend some crucial powers given to the National Security Agency.

Administration officials say they are confident they will win approval of the broadened authority that they secured temporarily in August as Congress rushed toward recess. Some Democratic officials concede that they may not come up with enough votes to stop approval. ...
That approval came yesterday:

Senate Democrats and Republicans reached agreement with the Bush Administration yesterday on the terms of new legislation to control the federal government's domestic surveillance program, which includes a highly controversial grant of legal immunity to telecommunications companies that have assisted the program, according to congressional sources.

Disclosure of the deal followed a decision by House Democratic leaders to pull a competing version of the measure from the floor because they lacked the votes to prevail over Republican opponents and GOP parliamentary maneuvers.

The collapse marked the first time since Democrats took control of the chamber that a major bill was withdrawn from consideration before a scheduled vote. It was a victory for President Bush, whose aides lobbied heavily against the Democrats' bill, and an embarrassment for House Speaker Nancy Pelosi (D-CA), who had pushed for the measure's passage.

The draft Senate bill has the support of the intelligence committee's chairman, John D. Rockefeller IV (D-WV), and Bush's director of national intelligence, Mike McConnell. It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

This is not to say that the Fifth Column didn't give it the ol' college try. A cursory look inside their prooffered alternative quickly reveals why Dem leaders couldn't even bring themselves to run it up the flagpole:
The defects in the Democrats' legislation are obvious. As the Washington Times notes, it "would require a court order to gather communications when a foreign terrorist tries to contact someone in the United States" even though "from 1978 when FISA was first enacted until this year, no such requirement existed." Apparently the Democratic view of a FISA "fix" is to make the legislation more onerous now that the threat of a terrorist attack on the homeland has become so very real.

Indeed, as the Times explains, under the Democrats' legislation a court order would be needed "to monitor communications of the very terrorists that American GIs are fighting on the battlefields of Iraq and Afghanistan." Until this year, it was considered legal under FISA to monitor terrorists in Iraq by placing a wiretap in the United States. However the special court overseeing FISA has called this into question. Any congressional fix should remove the question.
This is the kind of idiocy that needlessly endangered the life of Corporal Alex Jimenez when he was captured by al Qaeda in Iraq earlier this year, forcing a nearly ten-hour delay on Coalition rescue efforts due to having to get a warrant in order to tap enemy communications in the hopes of determining his whereabouts. As meddlesomely anti-intelligence as FISA was originally written, it was never meant to be applied like this. That the Donks want to write such ludicrously restrictive applications into statutory law says a great deal about them, and why they folded a losing hand and cut their losses.

And even in doing the right thing, if for the manifestly wrong reasons, the majority couldn't do so honestly or honorably:
Yesterday's nonsense began when the Democrats attempted to force their version of FISA to the floor with no debate and no amendments. They didn't even allow the Republicans to see the text until twenty-four hours before markup, cutting them out of the drafting process altogether. The Republicans responded with a motion that would have sent the bill back to committee where they could start negotiating on some of the text, and they added a provision that the bill must not keep intelligence agents from the ability to surveil al-Qaeda terrorists - which would have put the Democrats in the position of voting against that common-sense directive in order to pass the legislation under a no-debate, no-amendment rule.

Instead, they retreated completely, and the Senate took the lead in acting responsibly.
My, my, my. I remember well as little as a year ago when Dems screamed bloody murder if the Republicans who ran Congress didn't cater to their every unreasonable whim, much less pull this kind of totalitarianist shennanigans - and not for the first time, either.

NRO summed up the Democrat plight on FISA - and pretty much every other issue as well:
Democrats thus find themselves in an uncomfortable spot. They know FISA needs major surgery and are scared of being blamed for another attack if changes are not made. But they are beholden to privacy extremists and leftists who think the American government is more dangerous than radical Islam, and promise to revolt if surveillance restrictions are eased. So they play a cynical game. Rhetorically, they claim to be all for sensible FISA reform, but behind the scenes they seek to undermine it.
Such as the amendment Ron Wyden (D-OR) slipped in when nobody was looking requiring a FISA warrant for taps on Americans overseas, a rather clever bit of back-door obstruction that would bog down the NSA in trying to determine the nationality of the overseas side(s) of the terrorist communicators they're trying to surveille. Admiral Ed calls it the "Adam Gadahn" amendment, after the American traitor who defected to al Qaeda and now serves as Osama bin Laden's "Lord Haw-Haw", and notes that it would be an endlessly exploitable loophole in which for our enemies to hide.

It is expected that the Wyden amendment will be stricken and the FISA upgrade passed within the next few days. And while it still isn't permanent, its sunset provision is for six years, rather than just long enough for President Rodham to shred it.

Of course, she can simply order the NSA to shut down the TSP. It's no secret that is her intention just as soon as she gains the power to do it. Ironic indeed that her party's crushing defeat in the Battle of FISA is a significant contribution to its own ultimate evisceration.