Telecom Immunity Passes

by hilzoy

From the Washington Post:

"The House today overwhelmingly approved a sweeping new surveillance law that effectively would shield telecommunications companies from privacy lawsuits for cooperating with the Bush administration's warrantless wiretapping program.

Ending a year-long battle with President Bush, the House approved, 293 to 129, a re-write of the 1978 Foreign Intelligence Surveillance Act (FISA) that extends the government's ability to eavesdrop on espionage and terrorism suspects while providing a legal escape hatch for AT&T, Verizon Communications and other telecommunication firms. The companies face more than 40 lawsuits that allege they violated customers' privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks. (...)

One hundred eighty-eight Republicans and 105 Democrats voted for the bill."

Here's a list of the Yeas and Nays.

In the meantime, for your amusement and delectation, here's Chief Justice John Marshall in Little v. Barreme, a case from 1804. Congress had passed a law that "authorized the seizure on the high seas of vessels of the United States bound or sailing to any port or place of the French Republic." President Washington then issued this order to his naval commanders:

"You are not only to do all that in you lies to prevent all intercourse, whether direct or circuitous, between the ports of the United States and those of France and her dependencies in cases where the vessels or cargoes are apparently, as well as really, American and protected by American papers only, but you are to be vigilant that vessels or cargoes really American, but covered by Danish or other foreign papers, and bound to or from French ports do not escape you."

A commander captured a Danish ship, the Flying Fish, which was sailing from (not to!) a French port. Question: did the fact that the President had authorized the seizure of American ships sailing to and from French ports, even though the Congress had authorized only the seizure of American ships sailing to French ports, make the seizure of the Flying Fish OK? Chief Justice Marshall:

"I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers, and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is that the instructions cannot change the nature of the transaction or legalize an act which without those instructions would have been a plain trespass.

It becomes therefore unnecessary to inquire whether the probable cause afforded by the conduct of the Flying Fish to suspect her of being an American, would excuse Captain Little from damages for having seized and sent her into port, since had she actually been an American, the seizure would have been unlawful."

Personally, I'd be a lot more inclined to let military personnel off the hook for violations of a law that they might well not know about. (I'm assuming that this does not encompass violations of the laws of war.) Chief Justice Marshall, who (unlike me) actually served in the military, and who was a lot more familiar with the framers' intentions, apparently disagreed. It's an interesting contrast. (H/t CharleyCarp.)

***

UPDATE: I do very much want to know why Barack Obama didn't say a word throughout all this.

Comments

[Dan]

Future generations are going to lament when they study our time.

[Davebo]

UPDATE: I do very much want to know why Barack Obama didn't say a word throughout all this.

That concerns me as well. However I'm giving him the benefit of the doubt until the Senate takes up the measure.

[Kevin]

"I do very much want to know why Barack Obama didn't say a word throughout all this."

Because he is a centrist and doesn't care that much about this stuff? Obama has not, to my knowledge, taken a public leadership role on a single progressive issue. His health care plan was arguably less progressive, his ads attacking the other plans were in the Harry and Louise tradition, his trade positions are essentially centrist, his environmental polices are pretty centrist, and he very publicly abandoned progressive principles in the fight against Alito. Even his foreign policy is well within the center of American thought -- it just looks leftist because Bush's was so extreme. Only his tax policies could be described as progressive, but even those are suspect becasue they represent revenue losses that he cannot use to pay for health care or serious environmental change.

Obama is not and I don't think ever was a strong progressive. He is Bill Clinton without the Boomer political baggage. I would get used to this feeling: he is going to screw progressives over quite a bit in the next few years.

[Nell]

If Obama were going to take a leadership role on FISA, he would have done so long since.

No, he's going to vote against this, and maybe issue a stern statement just before the vote, but do nothing boat-rocking like put a hold on this Constitution-shredding, dictatorship-enabling garbage or announce his backing for a filibuster.

Those of you who hold out any hope that he might may want to take a look at Marcy Wheeler's excellent letter to Sen. Obama: [I've omitted from this excerpt her quotations from the Kennedy opinion]

In his recent opinion on the Boumediene case, ... Justice Anthony Kennedy reminded the Executive and Legislative branches that we cannot suspend the Constitution in times of crisis.

He went on to remind "the political branches" that the Article III Courts must not be turned into a mere rubber stamp for the Executive Branch--particularly when, as with habeas corpus, those Courts review laws designed to serve as a check on the Executive Branch.

Ultimately, the Supreme Court found aspects of the Military Commissions Act unconstitutional because it tried to limit the review of Article III Courts to mere review of whether the Administration had complied with its own procedures, and not a real review of the legality of the detention of men at Gitmo.

Yet this is precisely the kind of procedural review that the current FISA bill envisions. The "political branches" are attempting to limit court review of wiretaps on Americans to a procedural review in three ways:

- The Court can only certify that the current Attorney General has claimed the warrantless wiretap program was legal; it cannot assess the representations to the telecoms, nor review the legality of the underlying program.

- The Court can only approve the procedures planned in a given wiretap program, it cannot review whether the actual program is legal.

- The Court can only review proposed minimization procedures intended to protect US persons' data; it cannot review whether the Administration is actually following its own minimization procedures.

The Courts' role in protecting Americans' Fourth Amendment rights is just as important a check on unrestrained executive power as its review of habeas corpus. After all, the Fourth Amendment, just like habeas corpus, is a foundational principle of this country designed to guard against the abuse of power familiar before our Forefathers revolted against the rule of Kings.

For myself, I share the disgust of a commenter at Emptywheel with the Obama campaign's official response to requests to take a lead in stopping this express train to Nixonland:

I found the phrase “when he is President, there will be no more illegal wire-tapping of American citizens” arrogant and insulting. I take it to mean the law will remain on the books but our new, wise and just ruler will refrain from using these powers.

[Model 62]

Obama is not and I don't think ever was a strong progressive. He is Bill Clinton without the Boomer political baggage. I would get used to this feeling: he is going to screw progressives over quite a bit in the next few years.

Pretty much. He may be a centrist bas****, but at least he's our centrist bas****.

[Pinko Punko]

I think the House Leadership went all in. They probably called his bluff. How would Obama look if Hoyer said "we're going to do it anyway, and you are not the boss of us." ANy perception of his ability to lead would be totally destroyed. I really think they had a gun to his head. These people are incredibly stupid if they think this FISA business will make them look tough on anything/ Pathetic.

[debrazza]

This is sickening. It makes me so much more thankful that I changed my party registration back in 2002 to Independent. Absolutely sickening. Not a moral fibre, not a single ounce of principle.

This is why the Democratic party is doomed to fail, it is unprincipled and while Obama has so far campaigned on being principled, he has so far shown none of that principle at all.

He is now going to need to register a few million more voters, because the base is demoralized. More politics as usual in Washington and those that promised to stop this are doing nothing of the sort.

[debrazza]

I found the phrase “when he is President, there will be no more illegal wire-tapping of American citizens” arrogant and insulting. I take it to mean the law will remain on the books but our new, wise and just ruler will refrain from using these powers.

Agreed. We will be so grateful to have such thoughtful overlords when Obama is president.

[Model 62]

Anyhow. Assuming the compromise makes it through the Senate and Conference, what are the options for getting at the information (which Americans were wiretapped and why) now?

[joel hanes]

what are the options for getting at the information (which Americans were wiretapped and why) now?

Only one that I know of: a leak, a la Pentagon Papers, of classified information by someone on the inside. This could be someone like Comey who refused to re-certify the program when he figured out what was going on, or perhaps some telecom employee.

I think it will not happen while Bush remains in office -- the current Administration has chalked up a truly historic record for vindictive score-settling and for punishing those who cross them.

Just ask Don Siegelman. Or the fired DOJ attorneys like Daniel Levin and Debra Yang. Or General Taguba. Or ...

[Nell]

OT but only slightly: MoveOn is shuttering its 527 effort in response to pressure from the Obama campaign.

All hail Sen. Obama, fount of all political wisdom. Only He can speak for Democrats between now and November 2008.

Screw that. The only legitimate criticism of 527s is that the donor disclosure requirements are so untimely that the forces behind them can't be known until long after they've had an effect. (I'm looking at you, John Kerry and Dick Gephardt, and your thug funders Abraham and Torricelli.)

The answer to that is not to knuckle under to the Obama campaign's desire to muzzle uppity antiwar and civil liberties activists, it's to go ahead with a 527 which takes contributions only from those willing to go public immediately (like the Virginia state election fundraising rules).

[KCinDC]

Model 62, IANAL, but it appears that lawsuits about the reported pre-9/11 surveillance could still go forward, but showing that it happened and that the plaintiffs have standing could be a problem.

[hilzoy]

Nell: I don't read the MoveOn thing as muzzling anyone. And Democrats have never had a problem involving not speaking.

[KCinDC]

Obama doesn't like PACs, either, but MoveOn is keeping its PAC. It's only the 527 that's shutting down.

I think that the ability of 527s to accept unlimited donations (which means they're mostly megaphones for ultrarich people) plus the convoluted and inconsistent parsing of the rules prohibiting them from advocating for or against a candidate (sure, the Swift Boat Vets weren't against Kerry, they were just educating the public) are problems as well. Not that I agree with Obama's solution of calling for unilateral disarmament and increasing his control of communication on the Democratic side.

[Nell]

Pressure to close down an independent-expenditure campaign effort is muzzling. They don't want ads run that they can't clear and control.

It goes without saying that speaking individually is very different from significant ad buys.

MoveOn took this decision, as so many others, without bothering to ask its "members". The muzzling is not only by the Obama campaign.

[Nell]

KCinDC, good point on other problematic aspects of 527s.

Hard to have much enthusiasm for the whole freaking process at this point. Must go outdoors and take it out on the pokeweed.

[KCinDC]

I know the feeling, Nell. I was supposed to go to a low-cost fundraiser for a House member next week, but he voted for this abomination today so I don't think I'll be able to hold my nose and go at this point. Since the House doesn't have the problem of the filibuster, I really think we need to shift the emphasis there from more to better Democrats at this point.

[KCinDC]

Speaking of better Democrats, Donna Edwards did vote nay. Would Al Wynn have done the same if he'd survived his primary challenge?

[MobiusKlein]

Better Democrats:

My Congresswoman, Jackie Speier, voted no, when her recently deceased predecessor Tom Lantos may well have voted yes. (in a less Liberal district just south of Pelosi's)

[sidereal]

Better Democrats: McDermott. It's a little sad that I don't get to phone and upbraid my representative all the time. I hear it's kind of fun. He just keeps voting correctly on all of this garbage, dammit.

On Obama, I'm working under the assumption that he didn't take a particularly strong stand because it's House legislation, and I suspect House and Senate members shouldn't be going out and campaigning about each others' votes. But now that it's back to the Senate, if he doesn't take a strong stand on retro-immunity, I will be very disappointed.

[Mike Schilling]

Better Democrats: when I called Woolsey's headquarters yesterday to inquire, they told me enthusiastically that she would vote no (which she of course did.)

I called the Obama campaign a few minutes ago. They said that they would have a statement about the issue later today. We shall see.

[Jeff]

My Rep (Grace F. Napolitano (D) California 38th) voted Nay. I'll call her office and thank her.

[Ugh]

We live in a banana republic, but instead of the corruption and graft going on at, say, the local DMV where a clerk won't give me my drivers license without a bribe, all the bribing and corruption takes place at the highest levels of the executive branch and in the halls of congress.

Hooray for the US of A!

[MNPundit]

Well Obama has now said stuff. Basically hilzoy, he supports the bill except for immunity.

[KCinDC]

Argh, what Obama supports is the pointless restating of things that are already in the law that Bush ignored:

It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future.

How can redundant provisions be a "compromise" that's worth giving up on telecom immunity?

[McMartin]

Eshoo voted against. Her track record continues to be essentially perfect*.

For all the good it's done us. At least Silicon Valley seems to elect good representatives and gives them knowledgeable staff.

* By which I mean every time I've cared, I've looked her up and found she'd voted the right way. In the handful of occasions where it looked like she didn't, the original alert was ignorant rabble-rousing that got retracted within 24 hours.

[AndrewBW]

Who was the lone brave Republican who voted nay?

Dennis Kucinich is my rep so on this sort of thing I don't even have to bother looking him up -- I know he voted the way I'd like him to.

[Ampersand]

I suspect that Obama could stop this legislation dead, by putting a hold on it in the Senate. Yes, Harry Reid ignored Christopher Dodd's hold (Reid apparently only respects Republican holds). But I don't think even Reid would dare do that to the Democratic nominee, in a presidential election year.

Obama won't. But he could. And maybe we bloggers should begin mentioning that.

[Anarch]

Tammy Baldwin continues to vote correctly.

[J. Michael Neal]

Better Democrats: I'm represented by the actual Islamofascist in Congress, rather than by a crypto-Islamofascist. Of course Ellison voted Nay; this bill stymies his nefarious plot to bring down the United States of America, and impose sha'ria.

The only surprise is that I didn't realize he was in the pocket of Blackwater.

[J. Michael Neal]

I really don't think that a hold would suffice to derail this. It's going to take sufficient votes to sustain a filibuster, and those votes aren't there. One of the important skills in an effective politician is knowing when to fold 'em, and I think that Obama has correctly realized that this is one of those times. Fighting tooth and nail for something that then gets passed by a Congress controlled by your own party is a loser.

[bob mcmanus]

Rolling Stone Gathers No Mas

[sidereal]

Via Kos:

In an interview today on Bloomberg's "Political Capital with Al Hunt" (no link yet), Sen. Reid said he would attempt to remove the amnesty provision in the bill.

Reid said the Senate may try to remove a provision from the bill that shields telephone companies from privacy lawsuits. Holding a separate vote on that issue next week may provide political cover for Democratic presidential nominee Barack Obama. Even though the attempt may fail, Reid said the vote would allow those opposed to the liability protection to "express their views."

"I'm going to try real hard to have a separate vote on immunity," Reid said in an interview to be aired this weekend on Bloomberg Television's "Political Capital with Al Hunt."

"Probably we can't take that out of the bill, but I'm going to try."

Well. There is hope.
That's all I've wanted all along. The problem with amnesty being bundled with everything else is that people can dodge defending amnesty by pretending that all the other stuff is the really important part that they're supporting. So now give them a chance to vote on just amnesty, by itself, in front of the whole country.

[John J.]

Obama has spoken out very forcefully against the immunity provision, including co-sponsoring Dodd's amendment on the previous version. This agreement was made two days ago, the text wasn't released until yesterday and it was voted on today. I expect he hasn't had much time to focus directly on it yet and may be waiting until it comes back to the Senate.

[steve]

My Congresswoman, Stephanie Tubbs Jones, voted no. Bill Foster, the new Democrat in Hastert's seat, also voted no, as did Donna Edwards mentioned upthread and Andre Carson. The two other recent Dem special election pickups, Cazayoux and Childers, voted yes.

[JoshA]

Obama released a statement supporting the compromise, although noting that he would try to strip immunity in the Senate. However, Reid is saying that although they'll try, it probably won't happen, which means it definitely won't happen.

The statement is on DK and TPM and other places. I don't feel like linking. I'm trying to decide if I'm still going to the voter registration event I signed up for tomorrow.

[Nell]

Oh, man. He didn't even put up a cosmetic effort. He's just going to be our good-lookin' and benevolent King:

as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people.

"Any steps I deem necessary." Mmmmm. That's change we can hardly detect.

[Nell]

Oh, and good show, Sen. Reid. Good show.

More of the same expressive politics that have become the 110th Congress' trademark. God forbid we actually end the occupation; what's important is that we be seen to be trying very hard to. Hold me back, boys.

[Anarch]

Is it worth leaning on anyone beyond the obvious at this point? I mean, I'm going to call Russ Feingold (who will continue to be perfect, I expect) and Herb Kohl (who probably won't), but I'm wondering if maybe calling Reid and/or Pelosi to bemoan the moral death of the Democratic Party will accomplish anything.

[Adam]

That's all I've wanted all along. The problem with amnesty being bundled with everything else is that people can dodge defending amnesty by pretending that all the other stuff is the really important part that they're supporting. So now give them a chance to vote on just amnesty, by itself, in front of the whole country.

This may be the saving grace in Obama's position, but it's a serious long shot. And it's a questionable strategy, even though there is something to be said for focusing the debate on the one truly odious provision of the bill -- the one designed to stop discovery in the pending suits.

There may still be the chance to eke out a victory here if the Senate can either remove the provision or even tweak it enough to turn it into real immunity rather than amnesty.

On the other hand, the provision does realign the interests of the telecoms against the Administration. It also leaves open the possibility of criminal suits (not a concern for corporations anyway).

That's a dim silver lining, but since some version of the bill would have passed anyway, slow-playing may turn out to be the right move. It's hard to tell right now, but it's still kind of disheartening.

[trilobite]

Call the Obama campaign.

Obama is a good guy, and a smart guy, but I wonder if he has outsmarted himself this time. I suspect he and Reid think that this is (a) not all that critical, and (b) hopeless, and came up with separating out the votes to satisfy the civil libertarians by "taking a stand," without being too terribly offensive to the authoritarian/cowardly majority. Problem is,
(a) the civil libertarians, who are among the most active portion of his base, are not that dumb.
(b) if he then votes for the whole bill, that's going to look EXACTLY like Kerry's "I voted against it before I voted for it." That will hurt him badly.

I think phone calls and letters to this effect may help.

[Adam]

I think phone calls and letters to this effect may help.

Done and done. Does anyone know the number for the Senate Office as opposed to the campaign?

[AWH]

(1) Right now, Senator Obama has pretty much one job and one job only: winning in November.

(2) He unambiguously came out against telecom immunity and said he will work to get it out of the Senate bill.

(3) If (2) doesn't develop into a Doddian full-throated cri de coeur but stays at the level of a mere "no" vote, please see (1).

Some of you are a bit "demanding," to but it mildly... can we save the pearl-clutching until we're past the "campaigning" and into the "governing"?

[Nate]

My Congresscritter is a useless Republican, so I've not even bothered to contact him on much of anything lately. The constant fobbing off of form letters trying to ignore torture and everything else have gotten depressing. And it's not like any of the Republicans are going to vote against a giveaway to Big Business.

Maybe defeatism like that's not a good attitude to have, but the Republicans have shown they care exactly zero about torture, civil rights, or even effectively preventing terrorism, so why try and reach the elected officials? The only way to get progress is going to be by educating the voters, until the whole corrupt Republican machine falls apart, catches fire, and explodes.

[Nell]

@AVH: Being appalled that the next president plans to support a bill that ditches the Fourth Amendment, that gives the president the powers of a dictator. That's "pearl clutching" to you, eh?

[Nell]

Sorry, that's @AWH.

[Nell]

Obama Senate office contact info.

713 Hart Senate Office Building
Washington, D.C. 20510
(202) 224-2854
(202) 228-4260 fax

There is an online contact form on the web site, but only for Illinois residents.

Good luck.

[AWH]

I think this demand for ideological purity and mock- (or non-mock-) horror at Obama's imperfect adherence to one's list of priorities and perceived insufficient stridence in support thereof is all a little rich -- something about pleasing all the people all the time.

I'm not happy about the bill. At all. I'm fully aware of its constitutional infirmities. I'm also not in full "ZOMG, Barack Obama has just given George Bush carte blanche to make things so much worse over his remaining seven months as President than he did over the first 89" mode, as if the Bushies don't do whatever they want whenever they want anyway (a problem that should be addressed more vocally by a lot of people who aren't running for President, but that's a different issue).

So, for now, yeah, I do think it's largely so much pearl-clutching.

Obama is, rightly, focused on winning, and I have no doubt that no small amount of political calculation is behind his less than strident position on this issue -- for now. Personally, I trust Obama's talent (and that's what it is) for political calculation to a higher degree than any politican I've yet seen (although I think they should have "papered" the public financing thing better -- it's still a net winner for them).

For now, can we focus (and allow him to focus) on winning and not on lamenting comparatively minor warts on the candidate? Expecting him to grab his lance and shield and lead the charge at the FISA dragon is not "demanding leadership," it's demanding that he do just what you want just when you want it on just the issues you want.

This issue doesn't play in Peoria. Maybe it should. No, definitely it should. But it doesn't.

I assure you this isn't the last time between now and November that Obama is going to disappoint one person or another on one issue or another. Heck, the campaign financing "purists" are mad he isn't taking public money. But making this out to be the great constitutional crisis of our time (as if he can't undo everything in it except telecom immunity with a stroke of a pen come January) is kinda over-the-top.

When he is President, he can do the Presidenting. For now, can he just go win?

[AWH]

One example of the over-the-topness is, for example, saying that it ditches the Fourth Amendment and gives the President the powers of a dictator.

You're right, maybe the AP story should start:

"WASHINGTON- Presumptive Democratic Presidential Barack Obama stood idly by Friday as the House of Representative turned the United States into Cuba."

Pardon the pragmatism, but I think we (on the Dem side) might all be better served by ramping that sort of talk downward several notches rather than skyward.

[billyjohnston]

Nicely said, AWH.

[jonnybutter]

Obama's had a bad week from my perspective - the unveiling of his foreign policy 'working group', featuring M. Albright; this - but there will be better ones. Interesting post, Hilzoy. Appreciated as always.

You know, we could've nominated a strong liberal instead of BO, but nooooo; we're Beyond Politics now, right? Sure we are. I don't feel surprised by this (FISA) type of thing, and his partisans shouldn't either. I'm still planning on contributing to, and working and voting for, Obama, but if you have any illusions about him, do yourself a favor and ditch them. Brilliant politician. Not *nearly* as strong a progressive as we could've elected (and seen succeed) this time. oh well.

[KCinDC]

as if he can't undo everything in it except telecom immunity with a stroke of a pen come January

Perhaps, but telecom immunity is the main thing a lot of us are focused on. It undermines attempts to hold the Bush administration accountable for its crimes, and that's a big deal.

[KCinDC]

we could've nominated a strong liberal instead of BO, but nooooo

Like who? I don't know of anyone who was running this time who I actually believe is both "a strong liberal" and electable.

[Nell]

The difference between AWH and a lot of us is his/her belief that Obama will undo this bill with the stroke of a pen after taking office. Not only will Pres. Obama do that, he won't even consider doing it.

No one willingly gives away powers. He's serenely sure that he's not going to misuse them, because he's a good man. And they're necessary, because our country faces such terrible threats.

And that's the way a structural defense against a government of men, not laws, is thrown away piece by piece.

I don't wish to depend on the kindness of strangers, or the good faith of politicians. The genius of our constitution, at its best, is exactly its recognition that power corrupts, that dangerous amounts of powers build up if there are no bright lines, and to provide those limits and lines.

Today we're on our way to erasing one of the oldest and brightest of those lines.

If you're as fully aware of the Constitutional infirmities of this bill as you say, AWH, you wouldn't treat it like some unfortunate minor, reversible policy disappointment. And you'd stop belittling and insulting those of us who see this for what it is.

[Nell]

should be: Not only will Pres. Obama not do that...

To bed.

[AWH]

Sorry if you feel insulted or belittled, Nell, but I think it's wildly overheated to view this as some kind of line-in-the-sand, you're-not-one-of-us-unless-you'll-bleed-for-this kind of issue. Those issues are out there, and I'll be leading the pearl-clutching and couch-fainting brigade if that day ever comes.

I'm manifestly aware that (as you accurately point out) I'm to some (limited) extent depending on the kindness of strangers and good faith of politicians on this one. It's not the bill he wants, I want, or you want. But my point is only to say that his personal job isn't to lead the charge to slay this dragon, right here in the middle of campaign season. His job is to get elected. Steny Hoyer, Nancy Pelosi, Rahm Emanuel, etc. -- they have different jobs.

Interestingly enough, Obama has said that the first thing he'd do as President is review W's executive orders and rescind those that he views as unconstitutional. Sounds like you're betting that won't happen. I actually believe it will. Hopefully, if we can keep the current pearl-clutching to a dull roar, we'll get to see which one of us is right.

[John]

It is disappointing that Obama looks like he's going to vote for this mess after the vote to take out immunity fails (as seems likely).

This whole thing is dispiriting, because I don't understand why the Democrats are doing it.

At any rate, I guess I should give props to my congressman, Chaka Fattah, for not only having an awesome name, but also voting against this mess, and to my former congressman, Chris Van Hollen, who also voted against.

And kudos more generally to the members of the House Leadership who voted against - Van Hollen, John Lewis, John Larson, Debbie Wasserman Schultz, Diana DeGette, Jan Schakowsky, Maxine Waters, John Larson, Rosa DeLauro, George Miller, and Xavier Becerra.

Also credit to the Blue Dogs who voted against it - Bill Foster, Steve Israel, Mike Michaud, Loretta Sanchez, and Mike Thompson, and to the lone Republican, Tim Johnson.

Boos and hisses to the members of the leadership who gave us this abomination - Pelos, Hoyer, Clyburn, Emanuel, G.K. Butterfield, Joseph Crowley, Ed Pastor, and John Tanner. And to all the rest of those 105. Bah.

[John]

You know, we could've nominated a strong liberal instead of BO,

Really? Who was that? If the answer is John Edwards, I'd suggest going back and reviewing Edwards' actual record in the Senate. He may have made all the right noises this primary campaign, but I trust him on stuff like this about as far as I can throw him. And Clinton's even worse. Obama's as good as we can do. This is certainly disappointing, but the idea that we've thrown away a chance for magical liberal governance is ridiculous.

[Nell]

Another time, AWH, I'd be interested to hear what your line-in-the-sand issues are.

But you should just drop the language about fainting couches etc., full stop. You're using it inappropriately, leading to some terrible writing: fainting-couch brigades, keeping pearl-cluthing to a dull roar.

The Victorian images aren't for line-drawing struggles. They're used to mock people who claim to be shocked when they're really just ginning up faux outrage for political purposes: e.g., Michael Gerson's column affecting distress at Al Franken's "incivility", or cable television chatterers calling the MoveOn antiwar ad with the mother and baby "shrill".

The anger, disappointment, and shame Democrats feel when their party not only fails to block dangerous, irrevocable, right-wing legislation but collaborates in its passage -- there's nothing faux about that outrage. It's a very real human reaction to being sold out.

That kind of letdown corrodes the trust and enthusiasm necessary for people to do political work at all. Moreover, the cumulative effect is worse each time the pattern's repeated: the Patriot Act, the Iraq war vote, the Military Commissions Act, the PAA (the original FISA cave-in), and now full "legalization" of the principle that the president can use private actors to get around the Fourth Amendment simply by declaring that what he's having them do is legal.

right here in the middle of campaign season. [Obama's] job is to get elected. Steny Hoyer, Nancy Pelosi, Rahm Emanuel, etc. -- they have different jobs.

No, in their minds they all have the same job: to get elected, and to see that people with D after their names are elected, regardless of what positions they hold on the issues.

In doing so, they intend to take no risks, on the theory that taking substantive stands might endanger the election of Ds. (Regardless of any actual evidence about whether these substantive stands help or endanger election prospects.)

Thus: Impeachment was ruled out early on. There was never going to be any serious effort to force a withdrawal from Iraq. No real investigation into the extent of the spying was going to be pushed; quite the opposite.

No Democratic initiatives -- those bills that were such important business that we couldn't waste time with impeachment hearings -- were ever quite important enough for Harry Reid to force the Republicans to carry out their threatened filibusters. Instead, it was simply accepted that it takes 60 votes to pass a Democratic bill.

Result: damned little in the way of accomplishments to run on. Just more promises, and the none-too-inspiring truth that Ds are the lesser evil.

I opposed this latest cave-in so strongly because of the seriousness of the consequences and because it's so politically stupid and unnecessary. Saying 'no' to a wildly unpopular, over-reaching president for a few more months in defense of the Constitution: should be easy and an electoral winner.

A party that can't manage that -- what would make a voter think they can effectively tackle the housing/finance meltdown, the energy/climate/food spiral, or even follow through on health insurance?

[AWH]

@Nell

How about "gnashing of teeth and rending of garments"? Less Victorian, less connotative of fakery and unseriousness. ;)

Seriously, you make a good point that some people really do view this as the Gravest Constitutional Crisis of Our Time(TM), and any incaution in lumping them in with the drama queens and Hillary dead-enders (who were out in record numbers yesterday, if you've been scanning the intertubes) can lead to some, er, unfortunate, over-inclusive and rather spectacular mixed-metaphoring. Point taken. I think much of the generalized outrage is real, but I think 90% percent of the outrage directed at Obama is straight-up HRC dead-ender pearl-clutching in the grand Gerson tradition.

There's a reason that, despite being wrong on just about everything and basically never having the majority of people actually with them on the issues, the Republicans do well more than their fair share of winning. Today, which will go down in the likely never-to-be-written "History of Concern-Trolling" like September 11 will go down in the history of terrorism in America, is the second time in two months we've seen a circular-firing squad spectacle of this kind. The first was the ridiculous Committee meeting regarding the Florida delegates. As it stands, both the Democrats and the Republicans will have only 1/2 of their Florida delegations seated at their respective conventions. But only one side has a candidate being accused of "disenfranchising" people -- by members of BOTH parties, no less. The Republicans are simply more disciplined than to let this happen, just as they are more disciplined than to engage in the wide-spread FISA-related public spectacle of histrionics from yesterday. When it's general election time, they shut up and get in line. This might just have something to do with why they win.

President Barack Obama may end up disappointing you terribly, but he's neither President yet nor responsible for the FISA mess, and, whether it should be or not, the purist position on this is NOT an "electoral winner." Should be. Isn't. Taking "leadership" on this issue when the horse is miles out of the proverbial barn, thereby personally going down with the ship (that an intentional conflation of metaphors there just for you) is definitely not an "electoral winner."

So, I beseech you, please do Democrats everywhere (yourself included) a favor and wait to be disappointed with President Obama, not junior Senator Obama. His presumptive nominee status is not a magic wand that makes Blue Dogs suddenly willing to appear soft on national security to their often comparatively unsophisticated constituents (oops, there's my latte-drinking coastal elitism coming out).

Finally, the difference between Obama and Hoyer, Pelosi, Emanuel and company, is that, while they all might THINK that their main job is to get elected, right now -- on June 21, 2008, Obama is actually CORRECT to think that. His job is to win ... period, full stop. Do you think he's gung-ho, rah-rah for this bill? No, he's not. Some of the Blue Dog types that voted for it actually are.

It's fair to be hopping made with the House leadership. Not so fair to be hopping mad with Obama. And, as you'll see if you look back, that's my only point.

Thanks for listening, and, believe me, in the word's of William Jefferson Clinton, "I feel your pain."

[EarBucket]

Who was the lone brave Republican who voted nay?

I can't find a list of the votes, but I'll bet you a baby it's Ron Paul.

[hilzoy]

EarBucket: I linked the vote on one post or another. You owe us a baby. (Paul was absent.)

[jonnybutter]

I'd suggest going back and reviewing Edwards' actual record in the Senate. He may have made all the right noises this primary campaign, but I trust him on stuff like this about as far as I can throw him. ....Obama's as good as we can do. ...the idea that we've thrown away a chance for magical liberal governance is ridiculous.

Not going to rehash the difference between representing NC in the Senate and running for president, or any other stuff for the millionth time. The point is not about only Edwards. It matters very much what you run on - the idea that it's just 'noises' is naive and shows a real ignorance of what politics is. I like Obama, but he has run and will continue to run as a moderate, and I feel sure that he will govern mostly as one - 'beyond politics' rhetoric means, in this atmosphere, moderate. HRC ran as sort of an LBJ liberal - liberal domestically, more center-right/right in foreign affairs. 2008 was an historic chance to move the entire political center quite a bit to the left in this country; it is skewed so far to the right that a large leap the other way is not only thinkable, but quite doable. Obama will do this to a lesser extent than I believe was possible. There's nothing 'magical' about any of this.

Some politicians just baldface lie, like Nixon did. Most of them, however, actually give you a very good idea during their campaigns of what they want to do in office. Obama did, HRC sort of did, and Edwards did. If only a moderate shift to the left is OK with you, fine. I, along with other Democrats, and I suspect huge parts of the country, will be hugely relieved when Obama takes office and we return to something like public policy sanity. I have great hopes for an Obama Administration. But I think we could've done even better.

My point is that what you saw is what you get. The candidate who demogogued healthcare with Harry and Louise-type ads, and tried to demogogue Social Security, is the same guy as now. I'm not the one who is engaging in 'magical' thinking here.

[EarBucket]

hilzoy: Damn. You can have the screamy one, then.

[radish]

His presumptive nominee status is not a magic wand that makes Blue Dogs suddenly willing to appear soft on national security to their often comparatively unsophisticated constituents

Yes, well, some of us think that the process of influencing the "comparatively unsophisticated" views of those constituents is absolutely critical for th health of the republic. Also that such influencing is a good indicator of what the nominee (it hardly seems worth calling him presumptive at this point) considers important.

His job is to win ... period, full stop.

Here be dragons.

[Nell]

AWH: I think 90% percent of the outrage directed at Obama is straight-up HRC dead-ender pearl-clutching in the grand Gerson tradition.

Without knowing what sites you've been reading, I have no way of discrediting that claim. All I can say is that it's just completely not true of commenters where I've been reading -- starting with ObWi, and moving on to DailyKos, Hullabaloo, Emptywheel, FireDogLake, and Unqualified Offerings. All places where HRC supporters have been scarce.

Your claim clearly doesn't hold true for Atrios, Glenn Greenwald, or the main posters at the sites mentioned, none of whom were HRC supporters and all of whom have expressed negative reactions ranging from strong disappointment with Obama (Hilzoy) to disgust and outrage (the rest). Most of the negative reaction has to do with the substance of the issue. To the extent it has to do with the politics, the negative reaction has to do with the implications of this cave-in for how the party is going to conduct itself in the coming campaign and the next four years.

The perception that the reaction to this has much to do with Democratic primary politics at all is just odd, unless you've been doing most of your reading at sites that were heavily supporting Sen. Clinton during the primary season. But that seems unlikely, since you're fairly clearly an Obama supporter.

The primary season has been over since the first week in June (except in the technical FEC sense). Let it go.

[Joe Klein's conscience]

Nell:
Hell, Atrios even named Obama his coveted Wanker of the Day yesterday. And I bet it wasn't an easy thing to do for him.

[Anarch]

Seriously, you make a good point that some people really do view this as the Gravest Constitutional Crisis of Our Time(TM)...

Uh, yes. Because it is -- or at least, the Gravest Constitutional Crisis of My Lifetime, which will do for now. Telco immunity is one piece of that, to be sure, but it's a vital piece because it was one of the few ways left by which the Bush Administration could be compelled to admit what they have done. If this bill passes, we're pretty much left to trusting that their better angels will confess their sins which... well, if you believe that has a snowball's chance in hell of happening, you're a far better person than I.

[xoites]

Repeal FISA is now a day and a half old. We have nine bloggers with at least one more in the works and have been visited by 499 unique viewers. Other sites have placed us on their links and people are posting about us independently.

Anyone who wants to is welcome to sign up and become a Poster. The purpose of the blog is to organize a drive to repeal the FISA laws and all laws that pardon or give immunity from prosecution anyone who has violated the Constitution during the Bush Administration.

If you have a blog already and you become a poster we will link to your site.

http://repealfisa.wordpress.com/

[cleek]

Telco immunity is one piece of that, to be sure, but it's a vital piece because it was one of the few ways left by which the Bush Administration could be compelled to admit what they have done

true. but that's looking at this bill from a "Get Bush" perspective. and that's something which most legislators probably don't have. they have other things to do besides trying to gather evidence which will never be used for anything because the Dem leadership has already nixed the possibility of impeachment.

[david kilmer]

def rant

"To the extent it has to do with the politics, the negative reaction has to do with the implications of this cave-in for how the party is going to conduct itself in the coming campaign and the next four years."

This bears repeating and repeating. When you accept (tacitly or otherwise) the Republican concept of what makes the U.S. strong and secure, you lose. You are conceding not only that they're right (as Obama did directly), but that you are weaker than them on this issue. You simply cannot win a national security debate after you do that.

It's not about getting Bush. It's only peripherally about letting the telcos off the hook. It's really about the idea that we are stronger and more secure as a nation when we stick to the Constitution and to our values as Americans.

Yes, there are "unsophisticated constituents" who don't get it. But, by and large, Americans actually hold the values I mentioned above. What is there to be afraid of? Fear itself would be my guess.

end

[Matt]

Maybe I missed something, but...
"Boos and hisses to the members of the leadership who gave us this abomination - Pelos, Hoyer, Clyburn, Emanuel, G.K. Butterfield, Joseph Crowley, Ed Pastor, and John Tanner. And to all the rest of those 105. Bah."
From what I saw of the vote, Ed Pastor voted against telco immunity. What might I be missing? I ask because this will influence what kind of letter I write him.

[Nell]

cleek: that's looking at this bill from a "Get Bush" perspective

No, it's not. It's looking at this bill from a "how can we learn the extent and nature of the surveillance conducted against U.S. persons over the last seven years" perspective.

We have a right to know, and a need to know. This law permits all the information gathered to be kept by the government, regardless of the legality of how it was obtained.

cleek's willing to settle for knowing only as much about what's gone on as President Obama wants to share with the public, and to accept his word that it won't be happening any more.

I prefer more documented information than that, and methods with teeth to obtain it.

[Nell]

@Matt:

John's simply mistaken; Pastor was a 'no' vote. Glad you'll be writing him.