The FISA Collapse

When I first heard about the Democrats providing enough votes to pass the new FISA Act, I considered writing an entry partially defending their action. After all, the law has a sunset provision. It is not an easy thing to put limits on George Bush who is, like it or not, the president at a time in which sophisticated terrorist threats do exist. And, sad but true, Americans are not terribly concerned about civil liberties these days. The potential political costs were not minor.

But the more I have read about it, the worse it gets. This was not a hard-fought compromise. This was a failure of will, with the sunset provision as its only redeeming feature.

The clearest indication of that failure is the power that the act gives to Attorney General Gonzales, in conjunction with National Intelligence Director Mike McConnell. These men can issue warrants, something only a judge can or should do. In short, a lot of Democrats and nearly all Republicans voted to give a hack apparatchik extraordinary power.

That’s very different from acknowledging presidential authority. Of necessity he wields great constitutional power so long as he is in office. That’s not so true for the office of the Attorney General. To a large extent Congress sets the limits of his power.

Americans don’t trust Gonzales and rightly so. A majority of Democrats, including many who voted for this bill (and a fairly large number of Republicans who should not be let off the hook either), have said that he cannot be trusted. The Democrats could have sent to the president a version that cut Gonzales out, that did not contain nearly so many compromises, and that made the Administration’s veracity and competence the issue. Instead they granted Gonzales more purely judicial power than any A-G has wielded before.

It should be remembered that majority of Democrats opposed this. And maybe this is a bit unfair to that majority. Being out-maneuvered is not always avoidable.

Yet the way that they were out-maneuvered and the whimpering one hears from them afterwards leaves a foul taste in the mouth. Of the commentators that I have read so far, Dahlia Lithwick has put it best.

With this FISA vote, the Democrats have compromised the investigation into the U.S. attorney scandal. They've shown themselves either to be participating in an empty political witch hunt or curiously willing to surrender our civil liberties to someone who has shown—time and again—that he cannot be trusted to safeguard them. The image of Democrats hypocritically berating the attorney general with fingers crossed behind their backs is ultimately no less appalling than an attorney general swearing to uphold the Constitution with fingers crossed behind his own.