The Frankfurter School

In fact, if one were to look very closely at the way that things are happening in this country around the FISA reauthorization/Protect America Act/RESTORE Act/warrantless wiretapping/illegal spying/telecom immunity issue (right down to the fact that there isn’t one universally used subject title to neatly sum up the whole thing), you get an excellent case study in how our democracy is being incrementally dismantled, quite legally, using the legislative mechanisms of democracy to destroy itself.

In 1978, Congress passed the Foreign Intelligence Surveillance Act (FISA), which set up a special court to review and authorize requests for surveillance of foreign agents. This legislation came about in a period of revelations about all kinds of covert operations and surveillance being conducted by the Nixon Administration, and Congress acted appropriately to restore checks and balances to the power that was being exercised by the Executive branch. Republicans and Democrats joined together to defend and protect our constitution and the role of Congress and the courts in our government. The FISA court was established by this act to review and authorize surveillance of foreign agents. The court was secret, could give authorization in 24-72 hours, and in cases of urgency, the government was authorized to begin surveillance immediately and get the required authorization after-the-fact. This bipartisan compromise was criticized widely by many liberals for its secrecy and for the wide latitude it gave to security agencies, and the fact that it bypassed our existing and highly effective court system. In the 30 years since the court was established, it has approved all but five of the thousands of requests it has reviewed (all 5 of which occurred during the current administration).

FISA has been amended several times over the thirty years since it was passed, always to assure that our spying kept pace with technology. The most recent update occurred as part of the USA PATRIOT ACT, a complete and expansive extension of government spying powers that was passed just weeks after the 9/11 attacks.

In 2005, The New York Times reported that the Bush Administration was spying on Americans, reading emails and listening to phone calls, without obtaining the required warrants from the FISA court, a story which The Times held for over a year so as not to be seen as impacting the 2004 election. The Administration would not confirm the existence of this program but instead launched an attack on the New York Times for publishing national security secrets and then vowed to punish the whistleblowers who leaked the classified information.

Democrats immediately called for an investigation into the allegations but Republicans in control of Congress blocked their attempts at oversight, and instead began work on a bill that would legalize thestill- unconfirmed spying program and transform the oversight provided by FISA into mere reporting, to be made at the Administration’s discretion. A coalition of civil liberties and electronic privacy groups filed class action lawsuits against AT&T and several other companies, accusing them of violating their constitutional rights by assisting in this illegal government program.

When the Democrats regained control of Congress after the 2006 elections, investigations finally began, although slowly. The Senate Intelligence Committee discovered that there had been vigorous debate about the program within the administration, and that then-white house counsel Alberto Gonzalez and White House chief of staff Andy Card paid an infamous hospital visit to Attorney General John Ashcroft to unsuccessfully seek his signature on the renewal of this controversial program in 2004.

The Administration, with the help of lobbyists for the telecoms, started exerting enormous pressure on Congress to pass legislation to legalize the controversial spying activity and holding the companies harmless for their role in the lawbreaking. This brilliant tactic to grant immunity to the telecoms is on its face a gift to these companies which contribute hundreds of thousands of dollars to both parties, but even more importantly will immediately end the pending lawsuits and prevent the disclosure of information about the program, which is the real agenda behind immunity. The Administration has resisted Congressional oversight of the program by claiming executive privilege, but that would not apply to the details of the program that would be compelled as evidence and testimony in the lawsuits against the companies. Thus, granting these companies retroactive immunity is of great urgency in the cover-up of the lawbreaking.

In August 2007, Congress passed the “Protect America Act,” (PAA) which did not come out of the usual committee process but was written by the White House to make its surveillance activities legal. The Administration helped pave the way for this bill to be rushed through by hyping terrorist threats to the capitol and threatening to tar Democrats as soft on national security. Congress passed this massive expansion of powers but gave it a six month “sunset provision” so that they could have time to consider the issues and write their own bill. The PAA also stopped short of giving legal immunity to the phone companies.

Congress then began the work of drafting legislation to permanently address the Administration’s relentless requests for more power. In November, the House passed THE RESTORE ACT which gave explicit permission to the government to eavesdrop on foreign terrorists but left it in the jurisdiction of the secret FISA court. This bill did not include any provisions for retroactive immunity.

Meanwhile, two different bills in the Senate began moving through the Intelligence Committee and the Judiciary Committee. Senator Dianne Feinstein, a Democrat of California who sits on both committees, was starting to come under attack for a series of moves that put her more in line with conservative Republicans and lobbyists than her liberal Democratic constituents, and her office was besieged with phone calls and letters criticizing her support for telecom immunity, and some California Democrats moved to get the state party to censure her. During this period of intense criticism, after being a key “swing vote,” and siding with Republicans on the Intelligence Committee to include telecom immunity in that bill, Feinstein reversed her position for the Judiciary Committee bill to appease her critics and that committee produced a competing wiretap bill without any provision for telecom immunity.

During these few weeks at the end of 2007 that Senator Feinstein was flip-flopping, Senator Christopher Dodd, then running for President, began speaking out very forcefully against immunity for the telecoms. He announced that he was placing a “hold” on any bill that contained provisions for immunity and that he would lead a filibuster to prevent any such bill from passing in the Senate. Amidst the mounting pressure, Senators Obama and Clinton quietly agreed that they too were opposed to immunity for the telecoms.

In December, Democratic Senate Majority Leader Harry Reid, ignoring Senator Dodd’s hold on the bill, brought the Intelligence Committee bill to the floor for debate, giving the advantage once again to immunity. Senator Dodd and Senator Russell Feingold spoke out forcefully against the bill and threatened to filibuster; the netroots were fired up and paying close attention, and Reid pulled the bill off the floor.

But in the first weeks of 2008, the spotlight had fully turned to contest between Clinton and Obama and the “surge” of Mike Huckabee in the Republican race, and Harry Reid set about the crafting elaborate parliamentary theatrics to allow “debate” on a series of amendments to the Intelligence Committee bill. The resulting choreography, done in concert with the White House and Republican leaders, required that the number of votes required for each amendment (either a filibuster-proof 60 vote majority or a simple majority) were just enough to assure passage of the bill in exactly the form that White House demanded. And although final passage was delayed while the Protect America Act was extended by 15 days, and many good people rose in defense of the rule of law, the bill ultimately passed the Senate in exactly the form the White House had demanded, by a vote of 68-29.

Now, in order to become law, either the House must pass the same bill, or the Senate bill must now be reconciled with the House version in joint conference. President Bush has repeatedly threatened to veto any version of the legislation which gets to his desk without immunity for the telecoms. The PAA (but not FISA) has now expired and the right wing scare campaign has begun. But House Democrats don’t look to be quite as cowed as their Senate counterparts if a recent letter to the President from House Intelligence Committee Chair Silvestre Reyes is any indication. He directly takes on the fear-mongering and debunks the false claims the administration has made about the potential for lapses in terror surveillance. It remains to be seen what the outcome will be.

The only thing at issue here are checks and balances on the Executive branch, and the changes being made to FISA are designed only to eliminate oversight of the already secret surveillance programs. The government already has all the tools it needs to conduct all the surveillance it needs, and the wide discretion to conduct them when it sees fit. And the argument for immunity is entirely disingenuous as well, straight-facedly claiming that if we do not excuse the lawbreaking by these corporations that they might be reluctant to break the law next time they are asked.

While the mainstream corporate press has been documenting this story as major votes have occurred, most of the reporting has at best been shallow and lacking in context or real analysis, and at worst has been inaccurate and misleading. Independent sites like Salon.com and its indefatigable Glenn Greenwald, and bloggers like firedoglake’s Jane Hamsher have filled the role now vacated by the mainstream press, to collect information, analysis, and relevant background to give the reader a complete sense of each action and vote means and what is at stake.

Grassroots groups and internet-based organizers have had some small measures of success in altering the course of these events, if not in changing the outcome, and it remains to be seen if this power can grow and be made stronger and more effective.

In the meantime, our government may be allowed to spy on us without just cause or meaningful oversight, very very soon.