a FISA carol

Thanks to some enlightened members of the Senate and the hard work of grass- and netroots organizers all over the country (world?), the Republican-sanctioned move for cloture on the SSCI version of the new FISA legislation failed, and failed soundly. Only a handful of Democrats went over to the dark side. The importance of all the phoning and faxing done by us average American defenders of the Constitution should not be undersold—several Democrats seem to have crossed back over the abyss to rejoin the likes of Chris Dodd and Russ Feingold on the correct side of this issue. Everybody give themselves a hand.

After that cloture vote, Majority Leader Harry Reid then proposed a 30-day extension of the despicable Protect America Act, but Republicans, marching to the beat of a partisan White House drum, rebuffed a cloture vote on that “compromise.” They and the administration apparently would rather see this self-described important tool in the GWOT™ expire than give the Senate time to debate any amendments that might be seen as a (minor) Democratic victory.

So, what’s next? The House, which had already sent up a better FISA restoration last month (one that had no telecom immunity, among other small miracles), will likely vote Tuesday on its own 30-day extension. If that passes, the question will be to Bush/Cheney and the Senate Republicans: What’s more important, destroying the Fourth Amendment or scoring political points?

That is a question I dare not answer.

The Senate could also try to vote out a different FISA bill or short-term extension, but with the House only meeting this one day before the PAA sunsets, it is hard to figure how any Senate action could be turned into law before February.

Now let me rain on our parade a little bit. While the concerted efforts of all should be applauded, this is only a step, and a tiny one at that, toward surveillance sanity. There is still a good chance that when (and it is likely a “when” and not an “if”) a new FISA revision is allowed an up-or-down vote, it will contain many of the same indignities we rallied against on Monday. As Glenn Greenwald laments:

The only reason Democrats were able to hold their caucus together today to filibuster is because The Senators were offended that their inalienable Senatorial Right to vote on amendments was deprived by the GOP's premature Cloture Motion. The one (and only) "principle" that can really inspire many of these Senators to take a stand is the protection of their Senatorial prerogatives. Many of them don't actually have any beliefs other than that.

. . . .

Senate Democrats today took a stand for their procedural rights, not against telecom immunity or warrantless eavesdropping. After all, many of the Senate Democrats who voted to filibuster this bill were more than ready last week to vote for that bill, and they will vote for it again soon enough. Moreover, while they were upset that they were denied the right to vote on these amendments, many of them intend to vote against those very same amendments and will ensure that most, if not all of them, fail, so that the bill arrives at the White House in a form acceptable to the Leader.

I tend to share Greenwald’s pessimism, but I also like to remember the words of the Ghost of Christmas Yet to Come: These are only shadows of what could be—not of what will be.

What gives me the smallest amount of hope is that we only have to stop legislation—we don’t have to pass anything. Should the PAA expire, we simply revert to the 1978 FISA law—one that was already plenty permissive enough to allow for all the kinds of surveillance that the White House likes to pretend they need a new law to initiate. The original version just requires the smallest amount of oversight and records keeping—and that would stand in the way of what this group really wants to do with these sweeping spy powers.

Someday, I would actually like to see more oversight than that provided for in the 30-year-old law, but for now, I am content to stand by the original FISA act. We have been able to beat back attempts to codify a very bad set of new “GINOs” (guidelines in name only) twice this session, so there is always the chance that we can do it again.

Right?

Write: If you contacted your Senators yesterday and you liked the results, let them know. Thank them, and remind them that you will continue to watch progress on this matter, and that you expect them to continue to stand against telecom immunity and for our Fourth Amendment rights.