How to Legislate Like a Seven-Year-Old

(updated below) (updated again)

Today, as Democrats in the House were preparing to hold a vote on their version of the FISA bill (which I discussed here), the Republican minority introduced an amendment designed to derail the bill. Here's a description of the amendment from the website of Representative who introduced it, Eric Cantor (R-Va):

Today, we will be offering an amendment to the legislation to clarify that nothing in the bill “shall be construed to prohibit the intelligence community from conducting surveillance needed to prevent Osama Bin Laden, Al Qaeda, or any other foreign terrorist organization…from attacking the United States or any United States person.”

This language is so silly and vague that I doubt it would affect how courts interpret the rest of the statute. But the point of the amendment wasn't so much to change the law substantively, but rather to put the Democrats in a bind. They could either approve the World's Stupidest Amendment, thereby injecting uncertainty into the bill and forcing it to go back to committee, or they could face the prospect of future Republican campaign commercials claiming that they had literally voted against giving the government the power to protect Americans from Osama Bin Laden.

The Republicans might as well have offered an amendment "clarifying" that "anyone who votes against this amendment is gay." That's about the level of maturity we're talking about here. It's the kind of stuff that would embarass most seven-year-olds.

And sure enough, a number of Democrats were sufficiently frightened by the prospect of being unfairly attacked in future campaign ads that the Democratic leadership couldn't secure enough votes to defeat the amendment and had to withdraw the bill from the floor. Predictably, Republicans responded by attacking them in just the way they would have had they voted against the amendment. Here's Eric Cantor in an update to his website:

House Democrats have pulled the FISA bill. They are so desperately against allowing our intelligence agencies to fight OBL and AQ, that they pulled the entire bill to prevent a vote.

Got that? The Democrats are "desperately against allowing intelligence agencies to fight OBL and AQ." How's that for shameless demagoguery?

When will Democrats ever learn? Here's a bit of unsolicited advice for wavering Democratic politicians: in case you haven't realized it yet (and God only knows how you haven't) your opponents are, for the most part, absolutely shameless, and they will unfairly attack you no matter what you do and no matter how you vote. So if you are going to let clowns like Eric Cantor intimidate you with idiotic stunts like this, find another profession and let someone with more of a backbone take your place.

Even putting aside this amendment, it's clear that Republicans are more than willing to simply mischaracterize the bill itself and attack Democrats with lies. If you need proof of that, look no further than today's editorial in the Washington Times. The editors write:

Deception and political skullduggery are hardly new developments in the nation's capitol, but the House Democratic leadership has reached new heights of intellectual dishonesty in its spin campaign for legislation to change the Foreign Intelligence Surveillance Act (FISA), which reaches the House floor today. . . .

The Democrats claim the measure is a "compromise" that will ensure that U.S. intelligence agents can spy on terrorists and the like while preventing dark forces in the Bush administration from being able to spy on Americans whenever the spirit moves them. The most harmful features of the legislation include provisions that would require a court order to gather communications when a foreign terrorist tries to contact someone in the United States. From 1978, when FISA was first enacted, until this year, no such requirement existed.

After once again rehashing the already discredited claim that FISA was somehow responsible for the death of a trio of soldiers in Iraq, the editors conclude with this:

The RESTORE Act would effectively enshrine this kind of idiocy that endangers our troops as the law of the land. For the Democratic leadership, pandering to the left-wing blogosphere and the ACLU is apparently a higher priority than the safety of American GIs fighting al Qaeda.

This is just flat-out wrong on about fourteen different levels. First, the original FISA did require warrants for interceptions to or from someone within the United States. In fact, it required individual, particularized warrants (though it did have an emergency provision allowing intelligence officials to seek a warrant after the fact). The RESTORE Act does away with the individual warrant requirement and instead allows the government to seek a blanket court order for intercepting international communications of this sort. Indeed, this is why the ACLU strongly opposes the bill (so much for pandering to the ACLU). Moreover, the RESTORE Act has emergency provisions that allow the government to conduct this sort of surveillance without even a blanket court order for up to 45 days.

In other words, just about every statement made in the editorial is demonstrably false, yet the Democrats are accused of reaching "new heights of intellectual dishonesty." But no one should be surprised by this. This is the way policy arguments have gone for at least the last 20 years. Republicans in Congress and their allies in the conservative media have no qualms whatsoever about blatantly misrepresenting the basic facts of the debate. They'll do so in editorials, in public statements, in campaign commercials. It doesn't matter. So it is utterly pointless to worry about how Republicans might characterize your vote. They'll say what they are going to say no matter what you do.

UPDATE: Apparently the Democrats on the Senate Intelligence Committee have reached some sort of deal with the White House on FISA legislation. The bill would include a provision granting retroactive immunity to the telecom companies for participation in illegal surveillance. According to the Washington Post:

It will include full immunity for those companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.

I haven't seen the actual wording of this provision, but if it does in fact require companies to show the court some sort of contemporaneous legal directive in order to qualify for immunity, that's at least an improvement over some of the immunity provisions that have been discussed (which would have simply granted full immunity without any showing of evidence).

Still, I find it more than a little presumptuous that Rockefeller and the other Democrats on the intelligence committee would approve legislation granting such sweeping immunity when they know that the Bush administration has no intention of providing any information to the rest of Congress regarding what these companies actually did. They are essentially taking it upon themselves to decide the issue on behalf of everyone else and expecting their colleagues to legislate blindly. And it also doesn't help, as Glenn points out, that Rockefeller is one of the top recipients of contributions from the telecommunications industry.

The bottomline is that amnesty for these companies should not even be on the table until everyone in Congress has some understanding of what they did. Bestowing retroactive legislative immunity on anyone is a big deal; it's an extraordinary measure. It would take an important issue out of the courts and virtually ensure that none of these activities are ever subject to judicial scrutiny. As Glenn points out, if any of the presidential candidates currently in the Senate (Clinton, Obama, Dodd, Biden) want to win some major points with Democratic primary voters, finding a way to show real leadership on this issue would be a surefire way of doing that.

UPDATE: Chris Dodd steps up to the plate and places a hold on the amnesty bill. A smart move by Dodd. A missed opportunity for his rivals.