FISA Freakout - Senator Webb, the Constitution, and What It All Means

Cross posted to Raising Kaine

On February 12, 2008 Senator Jim Webb issued the following statement on his vote for passage of the FISA bill:

There were a number of measures brought before the Senate today that I believed could have improved the FISA bill which passed overwhelmingly tonight. This is a complex law. It becomes imperative that we look for ways to both keep our nation safe from further terrorist attacks and ensure that our government's surveillance is conducted in a legal manner that comports with the U.S. Constitution.

"Senators Feingold, Tester and I spent two months working to construct and introduce an amendment designed to add further safeguards against Executive Branch surveillance on innocent Americans. I believe the amendment best answered the call of Americans who have been demanding a proper system of checks and balances for our government's surveillance program. Our amendment regrettably failed this afternoon.

"I also supported two amendments which sought to limit immunity for telephone companies in proper situations. These amendments would have allowed consumers to move forward with legal action in certain situations, for example where companies have acted in bad faith in aiding government surveillance. Unfortunately, both of these amendments failed as well.

"Our current FISA bill expires in two days. As someone who has decades of experience in dealing with national security matters and classified intelligence, I believed it was necessary to implement a surveillance program that provides professionals an updated set of tools to properly respond to terrorist threats. However, I plan to urge my colleagues who sit on the Senate-House conference committee to adopt House provisions that better protect Americans from Executive branch overreach.

I've been monitoring the "debate" over Jim Webb's vote on the FISA bill. Most of the commentary is along the lines of Jim Webb being a Constitution hating fascist, a "sell-out", and a craven cave-in to the Bush Administration. One commentator suggests the best solution for this problem is to harass the stuffing out of his staff by inundating him with calls designed to "change his mind." Yes, harassing phone calls, just the thing to terrorize Webb and cause him to rethink his position, admit he was wrong, and stampede him into a reversal or at best a heartfelt apology. We all know how effective hectoring phone calls can be, especially against people with reputations for pugnacity.

I would suggest on the contrary that all the Webb ranters take a deep breath and chill. Here's why:

All this crap about betrayal and turning on the Constitution is really beginning to frost my nether regions. Webb and the other Dems are stuck in the unenviable position of trying to figure out how to perform their sometimes contradictory functions of protecting the country and protecting the Constitution while dealing with a hostile President threatening veto and Republican colleagues whose numbers are sufficient to prevent overcoming any veto. Now a lot of those guys aren't even running for re-election. There's a desperation in this lame duck crowd that makes it next to impossible to push through any compromises. No one's going to respond to our Democratic Senators reaching across the aisle. They'd rather have their vetoes and their filibusters and when some bad consequence occurs they'll point to the Dems and say "see what you made us do." The Senate Dems are playing with a bunch that has nothing left to lose, dangerous and obfuscatory opponents.

I've seen comments ridiculing the notion that there is a real and present danger to this country posed by terrorists or other criminal types. Webb happens to disagree. Maybe they're right. Maybe he is. He believes, based on his vast experience in the military, in the Defense Department, and on his career as a strategic thinker, journalist, and author that terrorist communications pose a serious threat to this country. Even the naysayers would agree he owes a duty of protection to this country.

Webb also owes a duty to uphold the Constitution and the Bill of Rights. Contrary to the suggestions of some in this forum he hasn't torched the Constitution. I checked his website and couldn't find a single invitation to the Constitution-burning at the National Archives this evening. What he HAS done, apparently against his own inclinations, is agree to allow for retroactive immunity for telecoms on their past actions in responding to the overreaching requests of the Executive Branch. He makes it clear in his statement that he did it, not because he wants to abolish the Constitution and destroy the Bill of Rights, but because the time to act was down to two days and he feared the consequence of failing to pass the legislation. It's possible he was wrong, that he weighs too much his duty to protect the country against his duty to uphold the protections of the Bill of Rights, but when we elected him we elected his brain and his experience and we understood that sometimes his sense of the balance between the competing interests might differ from ours.

There are those who are angry that the telecoms will be immune from consequence for their violations of this law. Fair enough. I hate to see law violators absolved of liability. But let us not kid ourselves. There is no purity or consistency in the application of the law. There are times when the competing interests raise their ugly heads and what is right and fair gives way to what is practical and to a certain extent also right. Where do all the naysayers think qualified immunity for public servants comes from? How about sovereign immunity? The law is replete with immunities and qualifications and limitations on liability for untoward behavior. Some of this behavior has a direct bearing on constitutional rights, but along the way courts and/or legislatures made the determination that competing interests outweighed the constitutional considerations. Added to the mix is that the behavior is all past, not ongoing or current, that the laws are still in effect, and that it's clear that the type of behavior the telecoms were engaging in a few years ago would never pass muster today. Usually when a pass is granted a wrongdoer he's placed on notice that future wrongdoing will not be tolerated or excused. There will be no "following orders" defense.

And let us consider this: there is NO absolute right to anything under the Constitution or the Bill of Rights. ALL of them are considered to be subject to competing interests. The law is riddled with exceptions and qualifications and parsing of meaning.

Two other points should be considered by the Webb-bashers: a) the legislation comes up for review again in six months; and b) he is hoping to achieve better Constitutional protections during the Senate-House Conference committee meetings. Instead of burning his telephone lines with angry and pointless attacks, perhaps people's energies would be better expended in encouraging his colleagues to go along with him and the House version. Senator Webb is not the enemy here. Let's let him do his job.