Hillary threads her own FISA needle

The FISA battle is over, for now. Bush and Rockefeller have their telecom immunity, basket warrants, weakened FISA oversight. Perhaps Obama opened the floodgates with his about-face. Stand in the breach he didn't.

Hillary Clinton voted against the bill today. Not only the political calculation but also the merits of the case may look different to one who may be President in a few months (though Hillary doubtless still hopes/intends to be President in a few years). Nonetheless, if you ask which of the two rivals showed the greater political courage, consistency, commitment to civil liberties on this defining issue, I must say the answer is not what I would have expected -- or, once I'd made my primary choice, wished.

Back in the primaries, Obama hammered Clinton's Iraq vote as essentially a political calculation; she was in his sights on March 19, when he charged, "there were too many politicians in Washington who spent too little time reading the intelligence reports, and too much time reading public opinion." If the nomination fight were still on, imagine what Clinton might say about Obama's FISA choice. Instead, to her credit, she soft-pedaled the split within the party:

I applaud the efforts of my colleagues who negotiated this legislation, and I respect my colleagues who reached a different conclusion on today’s vote.

Perhaps in keeping with that gesture towards those supporting the bill, Hillary emphasized the relative knowledge void in which the Congress was forced to act as one reason to vote against the bill:

What is more, even as we considered this legislation, the administration refused to allow the overwhelming majority of Senators to examine the warrantless wiretapping program. This made it exceedingly difficult for those Senators who are not on the Intelligence and Judiciary Committees to assess the need for the operational details of the legislation, and whether greater protections are necessary. The same can be said for an assessment of the telecom immunity provisions. On an issue of such tremendous importance to our citizens – and in particular to New Yorkers – all Senators should have been entitled to receive briefings that would have enabled them to make an informed decision about the merits of this legislation. I cannot support this legislation when we know neither the nature of the surveillance activities authorized nor the role played by telecommunications companies granted immunity.

Hillary also cited telecom immunity and the limited power accorded the FISA court to review the government’s targeting and minimization procedures as reasons to reject the bill. But in keeping with her moderate tone, she allowed that the bill "does strengthen oversight of the administration’s surveillance activities over previous drafts," affording Obama and others some cover for supporting it.

I still believe that Obama and other senators may have voted on the merits as they see them -- if, indeed, you can separate the fear of being painted soft on terror from the fear of actually enabling terror (even if you suspect that a contemplated course is unlikely to crimp antiterror efforts, you might still fear that it might). If the calculation was not mainly political, it would seem that proximity to the Presidency changed (concentrated?) Obama's mind, because change he did.

He's still got a lot of explaining to do. His blog statement to supporters was barely a beginning.

A Senator's sum of all fears

Back in February, I began to wonder why House and Senate Democrats who did not like the idea of weakening FISA would continue to be cowed by a President with approval ratings in the twenties. Those who opposed the FISA bill passed by the Senate, which pretty much gave the Bush Administration everything it wanted (telecom immunity and "basket"warrants), seemed to have no rhetorical trouble countering the President's charges that they were putting lives at risk by allowing the warrants granted by last summer's Protect America Act (PAA) to expire. Here, for example, is Ted Kennedy:

Think about what we’ve been hearing from the White House in this debate. The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill. So if we take the President at his word, he is willing to let Americans die to protect the phone companies.

So why, four months later, is a new bill on the brink of passage that grants telecom immunity and guts pre-PAA FISA requirements? And why is Barack Obama among those who have dropped resistance?

A tentative hypothesis: it's not Bush or the remaining Rovian Republican operatives that Democrats are afraid of. It's Mike McConnell. A critical mass of Senators and Congressmen may believe that the Director of National Intelligence is telling the truth when he insists, repeatedly and categorically, that the intelligence agencies' ability to track and foil terrorist plots will be crippled if the spies are forced to seek individual warrants for suspects abroad whose calls and emails they want to track.

I don't know how credible McConnell is. Some of his specific talking points -- e.g, that each FISA warrant requires 200 man-hours (El Paso Times, 8/22/07), or that a German plot allegedly foiled last September could not have been cracked without the powers granted by the PAA (New York Times, 9/11/07)-- have been contradicted or forcefully debunked. His more sweeping claims -- for example, that without the PAA warrants the country would lose “50 percent of our ability to track, understand and know about these terrorists, what they’re doing to train, what they’re doing to recruit and what they’re doing to try to get into this country” (NYT, prior link) -- are impossible to verify; if there's any evidence in support, it's classified. Let's say that the man does not seem immune to overstatement.

On the other hand, McConnell was for years head of the NSA, the country's main electronic intelligence dragnet. He is by all accounts highly competent. He claims to be nonpartisan, says he's voted for people in both parties (though he doesn't say for what offices or in what proportions). He also says that he has spoken to over 260 Senators and House reps in his advocacy for the FISA bill he wants (El Paso Times, link above). Presumably, the information he gives at least the top echelon is more specific than what he tells the public. And he certainly doesn't equivocate.

The gist of what he's told those 260 lawmakers-- in groups, one-on-one, at whatever level of classification -- is surely exactly what he's told all of us: that intelligence capability will be crippled if we weaken the orders granted by last summer's PAA; that al Qaeda has reconstituted itself and is working flat out to attack us as destructively as possible; and that those who don't give him what he wants will be enabling the next attack.

My guess is that a Senator might imagine only one thing worse than having been painted "soft on terror" after the next attack. And that's to have been soft on terror before the next attack. ("Soft on terror" may be a stupid phrase for having preferred preserving civil liberties to allowing effective if perhaps unconstitutional antiterror activities. But whatever you call it, the fear of enabling the next attack must be powerful.)

Is it credible to think that by insisting that our intelligence personnel seek individual warrants to listen in on foreign-to-U.S. phone calls, Congress might enable plotting terrorists to evade detection? I don't know. But even a suspicion that such might be the case might be enough to convince many senators and congressional reps to give the intelligence chiefs what they want. Including a presumptive President.

Of course, whether McConnell is right or wrong has no bearing on whether the kind of non-particularized warrants he wants are Constitutional. What if he's right, and they're not?

Rolling over for Rove?

Watching a Jan. 16 speech by Karl Rove to a Republican group on C-Span tonight, I got a sense of why the Dems keep rolling over for Bush on the FISA bill. Rove said that the leading Democratic candidates, Hillary and Obama, were in favor of preventing US intelligence from listening in on the conversations of terrorists if their phone calls passed through the US. That is of course a gross distortion of the position of those who are trying to maintain a modicum of FISA oversight over unchecked monitoring of Americans' phone and Internet communication. But the way it was framed - they want to keep those who are trying to keep us safe from tuning in on those who are trying to kill us -- seems to make the Democrats quake in their boots. Here's one more 'nod to Dodd,' who's vowing again to filibuster any bill that guts FISA and grants telecom immunity.

On the whole, Rove's criticisms of Hillary and Obama were so limp and familiar that I began to wonder if the Republican attack machine might be as tired as the party's policy precepts. But I wouldn't count on it.