No Deal

by publius

One of the most interesting questions surrounding the FISA bill is what to make of the botched deal between House Dems and McConnell (Mike, not Mitch). The deal was apparently hammered out and the parties came together in sweet Broderian harmony. But then the White House nixed it and frightened the Democrats into passing a significantly worse bill. So what happened?

Kevin Drum wonders whether it was a deliberate bait-and-switch:

Was this the White House's strategy all along? To lull Dems into a stupor and then hit them over the head at the last minute with brand new demands? Hard to say, but it sure looks deliberate. Democrats are going to have to learn to play in the big leagues if they want to keep up.

So was it all planned? If so, that’s some pretty impressive chess playing. And that’s the problem with this theory. It’s hard to believe that the same bunch that loses nearly 200,000 AK-47s and pistols in Iraq is capable of this sort of Kasparov-esque foresight.

I have a different theory, drawing upon personal experience. At my former job, I was responsible at times for dealing with opposing counsel. One day, I was haggling with an attorney over the scope of a deposition, and I hammered out what I thought was a good compromise. I patted myself on the back, ordered City Lights Chinese food on Seamless Web, and reported my success back to our team.

Well, let’s just say that one of the lead lawyers didn’t exactly think it was such a good compromise after all. I’ll leave it at that. Needless to say, the deal was off and I had to call opposing counsel the next morning revoking the compromise. He wasn’t pleased.

I think Mr. McConnell probably had a similar experience in recent days. From what I gather, he was the lead man who had taken control of the day-to-day briefings and negotiations. But when he reported the compromise back to his superiors, I’ll guess that someone in – wild guess here – Cheney’s office went ballistic and ripped it up into little pieces. Maybe David Addington gave him the Glengarry Glen Ross speech (the Alec Baldwin one). Who knows, but McConnell quickly changed his tune and the compromise was thrown out.

So until Michael Isikoff tells me what happened, that’s my uninformed speculation. Bottom line -- I think some went awry inside the White House. Some wires got crossed. Either that, or they are chess geniuses acting in extremely bad faith. Frankly, it seems obnoxious even for them to purposely go through the motions of reaching an agreement with the House Dems with the knowledge that they would never honor it. As OCSteve said in the comments yesterday: “We don’t have to attribute to evil what pure [incompetence] can accomplish.”

That said, there was an agreement and it was broken in a particularly bad faith manner. From a policy perspective (and for game theory reasons), this sort of conduct undermines future negotiations on virtually any other issue and poisons the air. Accordingly, I fully expect to see David Ignatius, Anne-Marie Slaughter, David Broder, and others up in arms about this affront to bipartisan cooperation and common decency in the days ahead.

Comments

[Hartmut]

I think it is not that uncommon a (bad) business practice*. Changes after a deal has already been declared successful (but before it has been signed) are used to put the choice on the other party to either call the whole thing off (and therefore to withdraw the declaration of "success") or to "compromise a little" to keep the deal. It is most often applied where there is no choice of partner (i.e. where one cannot go elsewhere to get a better deal).
The actual negotiators are often acting in good faith (thus being more believable) but their superiors plan not to keep the deal from the start.
No super-chess ability needed, there are enough shady businessbeings in the admin to know that manoeuvre from heart.

*SOP in employer-union negotiations, I'd say

[zmulls]

Broder is already up to speed on how awful the partisanship is, thanks to those darn scheming Democrats.

I imagine (Mike) McConnell is one of those old-style Republicans, and was genuinely surprised when he found out that the White House didn't actually *want* to make a deal.

Balloon-Juice has a link to a story about a raid on a former Justice Department lawyer' house, someone who is suspected of leaking information about the warrantless wiretapping program. I suspect during the next six months, while Bush and Cheney have this extra-judicial, unconstitutional power in hand, there will be a lot of retribution against people who have not gotten with the program.

[Mr Furious]

You know what? In EITHER scenario the Dems got played, and I am pissed. Neither makes them look better or worse.

This legislation should have been DOA on the Hill until The Administration and the AG actually copped to the intel-gathering they were already doing. The fact that the Democrats would grant this authority to the man who has just spent the last month lying to their faces under oath boggles the mind.

I'm disgusted.

[mds]

From a policy perspective (and for game theory reasons), this sort of conduct undermines future negotiations on virtually any other issue and poisons the air.

Since Bush can veto legislation on any issue he doesn't like (or ignore its provisions via signing statement), and since on his major "unitary executive" issues such as FISA and the Iraq War, he just gets everything he wants from a Democratic Congress, why does it matter if negotiations are undermined?

[zmulls]

(I'm glad to see that my new Congressman, Joe Sestak, voted against FISA)

[dmbeaster]

The enablers here are the Congressional Republicans and so called Blue Dog Dems who were more than willing to be stampeded by the crap. Focus your ire there.

The 6 month sunset provisions was the best that could be achieved, given these dynamics.

Bush had the votes for this nonsense -- that is the bottom line.

[OCSteve]

I’m going to stick with incompetence over evil intent. It’s too easy to go with intent when it fits our preconceptions. For example:

It was the Blue Dog Democrats that carried the bill to passage. Democrats from traditionally conservative districts up for reelection next year are the ones that crossed the aisle to vote aye. 41 voted yes and 9 did not vote at all. 50 votes.

Is it that the new Speaker just can’t keep her caucus together even on something like this?

Or did she coldly calculate that she could not risk those 50 seats, that she would rather see the bill pass than risk those seats, the Democrat’s majority, and her own position of power?

[cleek]

This legislation should have been DOA on the Hill until The Administration and the AG actually copped to the intel-gathering they were already doing.

and since this bill legalizes what they've been doing, it knocks the knees out from any effort to hold Bush et al accountable for breaking the law previously. what are they going to do, complain that he was doing something that they just agreed is necessary ? (as if they were ever going to complain anyway)

the Dem base is taken for granted. we are useful suckers.

[Barry]

Publius, I'd point out that the Democratic leadership in Congress is in the position of a law firm which has been bamboozled, stiffed, lied to and played like punks and fools by a second firm. By now, the second firm knows that they face literally no penalty at all for doing whatever they like to the second firm - so why shouldn't they?

[dmbeaster]

OCSteve

Is it that the new Speaker just can’t keep her caucus together even on something like this?

Or did she coldly calculate that she could not risk those 50 seats, that she would rather see the bill pass than risk those seats, the Democrat’s majority, and her own position of power?

In the world of politics and power, these two hypothecations are not all that different. The reason she could not keep the caucus together was because a large bunch of these 50 went for what they perceived as their self interest.

And if you find the FISA bill troubling, the reason it had traction is because 100% of the Congressional Republicans believed that they hold their seats by voting for this crap.

[matttbastard]

cleek: the Dem base is taken for granted. we are useful suckers.

Exactly.

[Scott]

A contrarian view. Once again.

The idea that the Democrats lack the intellectual capacity to understand legislation that they are voting for is kind of scary, don't you think? Here is a bill. Dems are for it. Here are changes to the bill which was carried to the floor by the Four Horsemen of the Apocolyps, ending peace and prosperity. Dems are still for it.

Is that the prevailing opinion of the Democratic party? No wonder they are ineffective.

Actually, I give the Dems much more credit than that. The Blue Dog Dems carried the bill. The Dem leadership made the appropriate noises, with clucking sounds, singing "We won't get fooled again", and let the Blue Dogs do what needed to be done to keep them from losing in 2008.

I would like for Bush to veto the bill, send it back, tell Congress that the change is smart policy and six months is not acceptible, make it permanent. Personal opinion: the Dems would cave again, and Bush would get what he wants.

[cleek]

...and let the Blue Dogs do what needed to be done to keep them from losing in 2008

at the cost of discouraging the base, yet again. i'm sure i'm not the only person who has decided against contributing to the DNC or any other the other blanket Dem groups because of this.

[larry birnbaum]

I agree, but the question remains what the admin wanted that McConnell gave away. After all he'd be the person in the best position to know what is actually needed operationally to get the necessary intelligence. So why second-guess him?

[KCinDC]

Well, I hadn't yet recommenced giving to the DSCC or DCCC after earlier disappointments with them, though I'd thought about it. I'm sticking with my DNC contributions for now, though, because I still support Dean.

[Joshua]

"let the Blue Dogs do what needed to be done to keep them from losing in 2008"

Was this actually necessary to keep them from losing, or was it just what the Beltway establishment has fooled them all into thinking they needed to do to keep them from losing?

2006 never happened, I guess.

[S Brennan]

publius,

It could be as simple as finding out your opponent is easy to back down, you know roll. Democratic leaders have EARNED a reputation for being wimps, so negotiating with them is easy, you take as much as you can and then you take some more...why not?

Democratic leadership = quislings

The Democratic leadership [there's an oxymoron] is a bunch of wimps. Chess game? No. Just the Schoolyard bully kicking the spit out of the neighborhood wimps who are too afraid to fight. Elected Democrats have not represented their base for decades.

Democratic leadership = quislings

The wimps think they can wait on the 2008 election.

Democratic leadership = quislings

[john miller]

The following is purely a theory, and I would not necessarily agree with the philosophy if it was a motivator for any of the Dems.

There has been a theory floated by some disillusioned conservatives that this administration knows eexactly what it is doing, and has no intention on losing the elections next year. Therefore, considering the current situation, they know that unless something happens to change things what they want is not going to happen.

The big push for this came right at the end of the session before vacation. Also, there has been some very strong whispering of al Qaeda looking to do something in the US.

It is possible that Bush et al actually believed the Dems wouldn't cave on this one, something might happen, and it is obviously all the fault of the Dems who blocked the gathering of intelligence that may have stopped the attack.

Some Dems saw this as a possibility and voted to pass it but with the sunset provision.

Just a guess, and probably way out there, but plausible.

[RepubAnon]

The Dems should have been all over the talk shows screaming that Bush blew the deal with partisan haggling - and refused to re-negotiate. Now that the Dems have again reinforced their reputation for wimping out, any future deals they cut will get stuff added by the White House at the last minute.

[CaseyL]

It is possible that Bush et al actually believed the Dems wouldn't cave on this one, something might happen, and it is obviously all the fault of the Dems who blocked the gathering of intelligence that may have stopped the attack.

So Bush's Plan A was to let another terrorist attack happen so he could blame the Dems?

That reminds me of the budget debate about, what, a year ago? When the Dems were disinclined to pass another "supplemental" budget for the war, at the same time a sizeable number of troops were due to rotate home. Bush was poised to blame the Dems for "not funding our troops" and say the rotation was actually a withdrawal for lack of funds. But the rotation happened before the budget vote, and deprived him of his set piece.

The whole thing makes me sick. There was never any question of whether the NSA could spy on suspected terrorists; the only issue was whether they needed a warrant to do so, and whether they needed probable cause to get a warrant. These requirements were not, are not, unreasonable or difficult to meet.

[john miller]

Not to let one happen, but this would be back up if one did.

Even I don't think they are that craven.

[Occasional Observer]

I'm an in-betweener. I think McConnell was given a brief, an issues list and text, and OVP and WH waited to see how he did. They knew they'd have to bring in reinforcements and have Bush demagogue over Congress' head. But these things can be dialed up or down based on how close McC got. All McC had to do was get the Dems to commit to doing a deal and get as much as he could.

From Congress' version it seems McC af first "lost" on sunset (4 months); audit/oversight (loads of DNI reports to committees); retroactive (not just going-forward) telecom immunity; FISC's standard of review; a nexus with terror (not just anyone outside US). There were more, but these are what stood out for me.

These would be hard for an intelligence professional to win face-to-face from politicians. Most had zero to do with spying or the "immediate threat"; some were legalistic; I suspect (though I'll never know) some had roots in that hospital visit, which was no bee in McC's bonnet. From the other end, the PAA goes leagues beyond the foreign-to-foreign problem touted in the media (for which Feinstein had language).

I think McC softened the Dems up, but not enough to preclude arbitrary, nonnegotiable demands of a cornered, cowering Congress. McC figured he'd made out better than he did by OVP and Rove's lights. Hence the mix-up.

By the way, the timing of the raid on Tamm's house mentioned above seems no accident. The signal: you leak, you and yours pay. (His kids' computers were also taken.) Same message as always. As a reading of the PAA makes clear, the game plan is: lights out.

[cognitorex]

Them and Us: Gossip
I heard that Cheney said, "This may be the last time we have our size tens on their throat. Zero compromise; not a comma. got it?"