Presumably, everyone has already heard about the showdown over the Protect America Act (aka the bill amending FISA.) Bush insists on immunity for telecoms, and threatens to veto any bill that doesn't contain it; the Senate caves; the House stands up to Bush and lets the changes to FISA expire. Bush sputtered ineffectually about the horrid dangers the Democrats are exposing us all to:
"Mr. Bush accused the House Democrats of putting the nation’s security at risk by refusing to extend the administration’s surveillance authority, including immunity from lawsuits for the telecommunications companies, which the Senate approved Tuesday.
House Democrats, in turn, accused the president of needlessly frightening the American people and insisted that intelligence agencies would still have every ability to monitor terrorism suspects if a temporary surveillance authority lapsed at midnight Saturday. The Democrats noted that the underlying law, the Foreign Intelligence Surveillance Act, would remain in force."
I thought it was great that the House Democrats finally stood up to Bush's bullying. Oddly enough, right-wing bloggers disagreed. Powerline:
"Over the last 36 hours, Congressional Democrats have again demonstrated a casual, even frivolous attitude toward their Constitutional duty to assist in keeping Americans safe from attack. (...)
Now, here is an investigation that would actually be worth pursuing: why did Nancy Pelosi and her House leadership refuse to take up the FISA reform bill? Did they deliberately sacrifice the security of Americans to placate their far-left base? Or was there a corrupt bargain with major Democratic Party contributors, who hope to make millions by suing telecoms? Did Nancy Pelosi politicize our national security by subordinating the security interests of all Americans to the financial interests of the Democratic Party's biggest contributors?"
Andy McCarthy at the Corner:
"The bill absolutely must be passed by the House or our foreign intelligence collection is going to collapse. It would be unconscionable for Democrats to allow that to happen while our nation confronts an enemy hell-bent on reprising 9/11 and while we have 200,000 men and women in uniform relying on the continuing flow of information from our intelligence services.
Well it looks like the unconscionable is about to occur. I am hearing from several sources that the House is planning to recess on Friday without taking up the Senate bill. That would mean the lapse of our surveillance authority at midnight.
This is a game of roulette with our national security (...) This is not politics, folks. For grown-ups, this is life and death."
(Um, no: every order now in place stays in place for a year, and any time the government wants to target someone new, all they have to do is get a warrant from the incredibly compliant FISA court.)
This rather understandably leads Kevin Drum to ask why, if this is all so vitally important and our national security depends on it, the President is not prepared to sign the bill unless it includes immunity for telecoms. John Cole is blunter: "why are they lying?"
The argument in favor of telecom immunity is that companies will not be willing to cooperate with the government if they are exposed to lawsuits. The arguments against this position are legion, but they basically boil down to the question: if the telecoms did, in fact, break the law, and did so despite having very good legal departments to advise them, why on earth should they not be liable for this? And why would we want to remove the only incentive any company has not to break the law when the Executive tells them to, by setting this kind of precedent? You'd think Congress actually wanted the President to be able to get corporations to break the law at will.
However, suppose for a moment that you are moved by the plight of the telecoms. What I didn't know until I surfed over to The Plank is that there was an amendment to the bill that would have taken care of these concerns without sacrificing the rule of law:
"There was an ideal solution to this problem: the Specter–Whitehouse substitution amendment, which would have allowed lawsuits to go forward but would have substituted the United States as a defendant, letting the telecoms off the hook. But the administration, Senate Republicans, and a handful of Democrats conspired to kill this amendment. The primary reason the Bush administration wants immunity isn't to help out its telecom friends, but to prevent the details of the wiretapping program from being scrutinized--even confidentally--in a lawsuit, regardless of who the defendant is.
Indeed, though my view is that House Democrats did the right thing by standing firm and letting the Protect America Act expire, they also deserve credit for making a good-faith effort to compromise on the issue--first by passing temporary FISA fixes, and then by supporting amendments like Specter–Whitehouse. But the fact that Bush was willing to let the law expire rather than compromise is telling--if reforming FISA isn't important enough for Bush to sacrifice immunity, then there's no reason for Democrats to unilaterally give in."
Here's the roll call on this amendment. Every single Republican except for Arlen Specter (and Lindsey Graham, who was absent) voted against it. Every single one.
At the end of the post in The Plank, Josh Patashnik (its author) quotes Sen. 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."
But I don't think that's right. The Republicans could have had all the changes to FISA without telecom immunity, but Bush said he would veto that, and the Republicans in Congress voted it down. But they could also have let the telecoms off the hook but let the lawsuits go forward. They rejected that as well. I think Kennedy is wrong and Josh Patashnik is right: "The primary reason the Bush administration wants immunity isn't to help out its telecom friends, but to prevent the details of the wiretapping program from being scrutinized--even confidentally--in a lawsuit, regardless of who the defendant is."
In any case, the one thing this is not about is protecting Americans.