Ideology vs. Progress, Take 1

I've noticed a LOT of situations recently where progressive ideology has bumped up against incremental change that would have real-world effects, and while I'm sympathetic to the ideological argument, I have to say that we need so much change right now that we cannot wait for the whole enchilada and must take the opportunities that present itself.

This first example appears to be a case of mistaken identity. The New York Times leads with a faulty headline and tries to make House Democrats' latest FISA proposal look like a capitulation.

Two months after vowing to roll back broad new wiretapping powers won by the Bush administration, Congressional Democrats appear ready to make concessions that could extend some of the key powers granted to the National Security Agency.

Bush administration officials say they are confident they will win approval of the broadened wiretapping authority that they secured temporarily in August as Congress rushed toward recess, and some Democratic officials admit that they may not come up with the votes to rein in the administration.

The reality is much more complicated. The Democrats in the House drafted a bill that is far better than the cave-in on FISA temporarily granted in August. I don't have the highest hopes that this is the version that will make it all the way to the President's desk, but there are some key elements here which reflect the concerns of the Progressive Caucus and the ACLU. I don't think there's anyone sharper on these issues than Glenn Greenwald, and here's his take:

To begin with, the bill to be proposed today by the House Democratic leadership actually contains some surprisingly good and important provisions.

That bill would compel the administration "to reveal to Congress the details of all electronic surveillance conducted without court orders since Sept. 11, 2001, including the so-called Terrorist Surveillance Program." It would also require the maintenance of a data base to record the identities of all Americans whose conversations are surveilled. And it provides nothing at all in the way of amnesty or immunity for lawbreaking telecoms or administration officials. The bill introduced by House leadership is a bill the White House will never accept and would certainly veto, and it is vastly better -- in important ways -- than the atrocity they enacted in August.

It is important here to recall that there is actually an amendment to FISA that is at least arguably justifiable. Even the original FISA law never required warrants in order to eavesdrop on (a) foreign-to-foreign calls or (b) calls involving a U.S. citizen where the target was a non-citizen outside the U.S. (who just happened to call into the U.S.). But recently, technological developments resulted in such calls, even foreign-foreign calls, being routed through the U.S. via fiber optics, and a FISA court ruled this year that the language of FISA requires warrants for such calls.

Even civil libertarian stalwarts such as Russ Feingold agree that it was never the intent of FISA to require warrants for those categories of calls and that amending FISA strictly to fix that problem is justifiable. And the House bill (which, I should note, I have not been able to read yet because the bill has not been publicly released and people in DC love to keep things secret, but I have spoken with many people whose expertise I trust who have read it) makes that arguably necessary change. But the bill gives the White House little else, and imposes some important requirements that the White House would never accept.

It is definitely possible that this is all just deceit, that House leaders introduced this bill strictly to placate their Progressive Caucus and their base and that they have no real intention of fighting for these provisions, but instead will give Bush what he wants once Mike McConnell starts accusing them of Helping the Terrorists and they begin negotiating in secret again. But it seems that there are important House Democrats really ready to fight on these issues, to prevent Steny Hoyer and Rahm Emanuel (who unfortunately seem to be the real Speakers of the House) from conniving like they did in August to manipulate their caucus into supporting something far worse.

This is the beginning of the fight, not the end of it. We have a decent House bill and the looming spectre of the original atrocity expiring, reverting back to the initial FISA law. There's no need to hurry this or to offer anything beyond that fix on foreign calls re-routed to the United States. The Progressive Caucus has really stepped up and we need to support them, and exert influence on the leadership to ensure that the Senate provisions, which will probably include retroactive immunity for the telecom industry, are nixed.

If the Democratic Congress capitulates yet again, there will be plenty of time and opportunity for all sorts of recriminations. I think it is quite encouraging that much of the "netroots" is now devoting its energies and resources not to supporting Democrats, but to opposing Congressional Democrats who merit defeat.

Just because the New York Times characterizes Democrats in an article as "nervous" and "soft" doesn't mean they are; it means the NYT is following the same script on Democrats that they have for 20 years. We shouldn't buy into it, we should actively work against it. And if it happens to turn out that way, we speak out. But it's far too early for such a thing.

UPDATE: The ACLU sees one flaw:

"The ACLU sees one major flaw in the RESTORE Act. As drafted, the RESTORE Act still allows for the US government to collect phone calls and emails from Americans without an individual warrant.

Program warrants - sometimes called basket warrants, sometime called blanket warrants - included in the draft bill are a crucial sticking point. There is no specific target when you use basket warrants, which contradicts the heart of the Fourth Amendment. Essentially, a basket warrant really means no real warrant.

The "umbrella warrant" issue is sticky and should be removed. Anything that nonspecific is open to abuse. But again, we're 95% of the way to a good bill, and if the President vetoes we get the original system back in place. I would consider offering the foreign re-routing fix as a single amendment and moving on, in that case.

UPDATE II: I should add here that there's a tension between being an informed citizen, which means reasing and analyzing with deliberation, and being a blogger, which means getting to something as soon as possible. There's also a bit of a bias that everything put out by Democrats is necessarily a stab in the back, to which I don't subscribe.