To follow up on Hilzoy’s post, the part of the FISA “compromise” I find most infuriating is that the Democrats are quite literally insulting our intelligence in describing what they did. Their press releases and statements on telecom immunity assume that we’re morons. If you want to grant immunity, then do it and have the guts to say you’re doing it. But don’t lie about what you did. This whole “treat them like rubes” strategy is unacceptable.
To illustrate — the telcos are getting immunity and everyone knows it. They literally only have to show that the Bush administration sent them a letter. That’s it. Show the letter, and you’re immune — no discovery, no nuthin'. (As I've said, I don’t care that much about punishing telcos, I care about generating information through discovery).
However, instead of just admitting that they caved, the Dem leaders are pretending like they’ve instituted tough new standards by requiring a district court to make the final decision. Thus, they’re essentially doing two things: (1) lying about what they’re doing, and (2) shifting blame to a politically unaccountable branch of government.
When I say “lying,” what I mean is that Democratic leaders are dressing up the district court “review” as something it’s not. Via Laura Rozen, here’s how Rockefeller’s committee described the rubber stamping:
A district court hearing a case against a provider will decide whether the Attorney General’s certification attesting that the liability protection standard has been met and is supported by substantial evidence. In making that determination, the court will have the opportunity to examine the highly classified letters to the providers that indicated the President had authorized the activity and that it had been determined to be lawful. The plaintiffs and defendants will have the opportunity to file public briefs on legal issues and the court should include in any public order a description of the legal standards that govern the order.
Sounds pretty scary, eh? Lots of big mean words in there. “Supported by substantial evidence” — tough! Exacting! And you gotta love the whole “opportunity to file public briefs on legal issues.” Yes, I’m sure we can all have a lively legal debate about whether the letter that everyones knows was sent was in fact sent. Should be a very detailed brief.
And Pelosi’s comments were arguably worse (and I love Pelosi):
And it is  an improvement over the Senate bill in that it empowers the District Court, not the FISA Court, to look into issues that relate to immunity.
Ah yes…. “Look into issues that relate to immunity” — that’s a pretty accurate description. Thanks for assuming we’re idiots.
Again, the deal itself is bad enough on its own. But what’s borderline intolerable is the intellectually insulting, misleading language they're using. I can think of two potential explanations for the dishonesty. The first is that they’re hoping we’re idiots and won’t really understand the difference. The second is more troubling — it’s that they know we know, but they don’t care. They’re just coming up with something — anything — to convince low-information voters that they applied strict standards by “empowering” a district court. The bloggers, they argue, will forget about all this in a few days, so they can just ignore them. Ugh.
One final question — why now? If there was ever a favorable time for blocking immunity, it’s now. I could maybe understand this decision in 2002, but not in 2008 when the GOP is having so many political and financial problems. And besides, it’s bad politics.