FISA's Friends

An interesting (although, ahem, predicted) story is shaping up in Congress's reaction to the Bush administration domestic spying program. Bush, in spite of his increasingly farcical bluster, has conceded that Congress will have to be involved in some way in the program. Although it is somewhat difficult to sort through all the political theatre and maneuvering, there appears to be four distinct positions vis a vis the spying program. The first possibility, as Bill Frist argued for today, is for Congress to do nothing, allow the program to continue, and leave FISA in place, apparently as a kind of optional program that Presidents can opt out of if they see fit. This option is fairly unlikely, however. Even Pat Roberts, the Republican chairman of the Senate Intelligence Committee and staunch ally of the Bush administration, appears to have figured out the current program is generating too much heat and provides too easy a target for Democrats.

The second option, endorsed by some Democrats, is to insist that the administration complies with the '78 legislation, and seeks a warrant from the special secret court established by FISA. This option appears equally unlikely, however. Even the majority of Democrats seem to be admitting that FISA can be further stretched in order to achieve some form of "oversight." Moreover, that would be a major loss of face to the White House, and would be resisted by Republicans and some Democrats in Congress.

Far more likely are the third and fourth options, or some combination of the two: Congress could either adopt the plan proposed by Senator Mike DeWine, which would have Congress pass a law retrospectively authorizing the spying program while leaving FISA in place, or follow the plan endorsed by Roberts and many others and rework the FISA statute itself, either weakening the review process, or establishing some form of Congressional review, or some other form of institutionalization of the domestic spying program. Both of these options involve some form of legalization, leaving large parts of the spying program in place, while avoiding the awkward lack of legal authority that is currently causing such an uproar.

That is the spectrum of possible responses, in increasing order of likelihood. Two conclusions suggest themselves from this survey: First, Congress will, in some form or another, legalize Bush's spying program. The liberal-left, which has spent this whole time arguing that the spying was illegal, literally will have the ground swept out from under its feet. All the arguments we have heard – coming from the Nation, to the New York Review of Books, to the New York Times (just to name a few) - that the problem with the spying was its illegality will be irrelevant if either DeWine, Roberts, or any of the other myriad legalization schemes are successful. Could there be a more dramatic illustration of why exclusively legal arguments make for a bad and naive political strategy?

Secondly, note that the most liberal position - enforcing FISA and holding hearings - accepts wholesale the legitimacy of a secret court, where only Justice department lawyers present evidence, which essentially has acted as a rubber stamp for domestic surveillance since its inception (in its 28 year history, 18,761 warrants were granted, and 4 or 5, depending on which source one follows, were rejected. Would anyone like to do the math?). As we've been arguing for months, FISA itself represents a considerable blow to civil liberties. The fact that it now represents a principled, liberal stance speaks volumes about the insidiously slippery slope of the politics of fear. But even if the Bush administration loses its battle to save its spying program, it appears to have won the war of narrowing the spectrum of "legitimate" debate, deflating our expectations, and numbing our sense of what qualifies as normalcy.