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.

So Are They Prisoners of War or Criminal Detainees?

For a brief period on Thursday, April 26th, Senator Patrick Leahy became a witness and testified before the Senate Armed Services Committee on the rights of Guantanamo detainees.

Leahy described the indefinite detention of hundreds of individuals as "un-American". Senators skirmish over Gitmo detainees. Thank goodness for people like Leahy and Senator Levin, who point out the hypocrisy in a system which professes the rights of the accused and yet holds them indefinitely without the right even to demand probable cause. As Levin said:

"America at its best is a beacon for human rights and human liberty, and that's how we like to see ourselves ... but much of the world sees us in a very different way when we fail to live up to the standards we profess."

The government has released well over 300 of these detainees, the so-called "worst of the worst" according to Cheney, yet the continued detention of the remaining detainees is considered justified by the nature of the accusations against them. What a crock.

We hear it over and over again: We're in a "global war on terror". Really? It's a war? Then why aren't the rules of war being followed? Why aren't the people we're detaining being considered prisoners of war and subject to the protections of the Geneva Convention?

They're not soldiers but terrorists? Well aren't terrorists criminals? Why can't we subject them to the criminal laws of this country as we used to do before the Bush Administration decided to create this legal limbo where people are neither soldiers nor criminals but something in between? How is it that we were able to try and convict terrorists like the blind sheik and his co-conspirators after the first World Trade Center bombings without sending them to an island with no recourse to the legal system? Didn't we try and convict Tim McVeigh without taking away his right to an aggressive legal defense? The law is not the enemy. Legal protections and standards of evidence and fairness are not the enemy. Again, what is our government afraid of?

Senator Webb Sheds Light on the Matter, Lampshade or Not

In keeping with his status as a rising star in national politics Senator Webb was interviewed on Face the Nation and declared a Person of Interest on the McLaughlin Group today.

Bob Scheiffer on Face the Nation started off asking Senator Webb what he thought of the peace rally which took place yesterday. Webb replied that "one of our greatest strengths is we have the right to stand before the people in power and state our views." He went on to distinguish the turmoil of Iraq from that of Vietnam, noting that along with the war many other issues had been involved in the protests, and that 8 years after the Gulf of Tonkin resolution the majority of Americans supported our assistance to the South Vietnamese government.

He went on to point out that he was not so much against the Iraq war as he and others of long military background and experience thought it would be strategically bad idea. There was no endpoint, no strategic plan. He said we cannot keep increasing troop numbers on the theory that when all else fails we are going to throw more military in. The preponderance of evidence is that it will not work.

Scheiffer then asked what Webb suggested. He replied that what is needed is something like the Dayton accords. The problem cannot be solved militarily but requires a political solution in which the parties can be brought in and assume ownership of the issue and responsibility for its resolution.

On Scheiffer's inquiry about his response to SecDef Gates's statement that the Senate opposition was "emboldening" the enemy, and Vice President Cheney's statement that Webb's opposition to the increase was "hogwash", Webb replied that throughout the history of this war Cheney's statements have been "off and wrong". As to Gates's comments, he said they were wrong and a Defense Secretary should not take such positions. He questioned which enemy Gates was talking about: Iran? Al Queda? Al Sadr? In a situation in which the enemies are many the solution is to "boldly step aside and invite them to the table" to negotiate. By starting this war "we lost the place we had in the world before we began this".

Next was the question of the resolution. What should happen if the President does not listen? Webb replied that there will be other congressional actions. We need a strategy with clearly articulable endpoint and Congress will take the steps necessary to accomplish that. He noted also concern about the way the money is being spent. He hopes soon to "put on a lampshade, er, eyeshade, and really analyze the situation. There has been no accountability and a lot of sweetheart deals for the contractors," and he is going to see how the money’s been spent.

Webb went on to say that when he first arrived Senator McCain met with him and said there needs be no impugning of the patriotism of either side. He hopes Senator McCain remembers this because recently he has been seeing something bordering on charges of disloyalty from the Republican side. He pointed out that "our military is diverse and we should not presume to speak for the troops. What we’re doing is trying to define how it can be a win."

Once again Senator Webb hammers home his major points about strategic necessity and context in our actions rather than mere tactical moves. He noted again that we cannot be trapped into trying to solve this matter militarily. I wondered if he misspoke and said lampshade because he really is trying to shed some light on how this war should be conducted and on the other troublesome aspects, including the abject failure to establish accountability with respect to contractors.

On to the McLaughlin Group. John McLaughlin declared Senator Webb a Person of Interest, reviewed his impressive resume, and asked if Senator Webb heading for national leadership or will he burn out? UPI's Martin Walker said Webb will be a national statesman who was "absolutely right" in his challenge to the President. He called him "brilliantly bipartisan" in his choice to refer to two Republican presidents and said "this guy is going to be a sage of this country."

Do Hagel and Webb have special authority as combat veterans? inquired McLaughlin. Pat Buchanan opined that Webb lends great authenticity to the war debate, a tough guy who "wrote a great book". He has "capacity to be a president but in that party it would be very tough for him." Eleanor Clift described him as a serious man who is among people who were in student council during Vietnam. Among administration voices are the chickenhawks, and they're flocking.

Tony Blankley didn't like the chickenhawk comment, but declared that Webb is a virile man in a party led by two women and the Democratic "nuts" now have a real man around the house. Was hoping Clift would succeed in her attempt to launch herself at his throat.

The admiring Walker summed up by saying this war is more and more about people sent into a less and less hopeful fight, and now there is a war hero to say so. He cited with approval Webb's statement that Americans will fight and die when called but the President owes a corresponding obligation to be extremely thoughtful about the battles into which he sends them.

There you have it. A year ago Jim Webb was a private citizen who had already just about made up his mind not to run for office. Now he's on a fast track to becoming one of the nation's elder statesmen and among the most influential members of the Senate. Astounding.

Webb's New GI Bill

Keeping a promise he made during the campaign, Jim Webb's first act as Senator was to introduce a sweeping expansion of veterans' educational benefits, Senate Bill S.22. Here are the highlights from the Marine Times.

Called the Post-9/11 Veterans Educational Assistance Act, Webb’s bill would boost benefits so they equal the amount paid to World War II veterans. That would mean the GI Bill would cover the full cost of tuition, room and board plus a $1,000 monthly stipend. His bill also would drop the $1,200 enrollment fee active-duty service members must pay to be eligible for the GI Bill.

In a statement, Webb, formerly secretary of the Navy, said the current GI Bill “served this nation well during peacetime, but times have unfortunately changed. The demands placed on [service members] in this post-9/11 era are much greater than when Congress established the current program.”

Webb said that with many military members serving two or three tours of duty in Iraq and Afghanistan, “it is past time to enact a new veterans’ education program modeled on the World War II-era GI Bill.

“This is exactly what our legislation does,” he added. “It will provide veterans of the 9/11 era with the same program of benefits that our fathers and grandfathers received after World War II.”

Marine Times article

It seems only fair that American military members who have been required not only to put their lives and families on hold, but also their educations and prospects for advancement, be provided the resources to improve themselves and their prospects for success.