On the whole, I’m quite content with Nancy Pelosi’s leadership. Unfortunately, House Dems appear to have inexplicably caved on FISA again. (Senate caving is explicable, they have a bare majority).
I’ll go to Marty Lederman for the legal analysis:
Note the key word: reaffirmation. The Democrats worked long and hard to include in the bill a provision (stating that FISA and other specified statutes are to be "the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted") that is, for all intents and purposes, a reenactment of the current 18 U.S.C. 2511(2)(f), which has been the backbone of FISA for 30 years.
The options, apparently, were to have this key provision stripped from FISA, as the Administration wanted (which would have made an incredibly permissive bill basically hortatory), or to retain it and "reaffirm" it. After a long, hard battle, the Dems prevailed on that one. Whew. Close call, that.
My favorite bit, however, is the Pelosi expectation that "the language would prevent Mr. Bush, or any future president, from circumventing the law." Yeah, right -- just as it "prevented" President Bush from authorizing wholesale violations of FISA from 2001 until 2007. (Note to Speaker Pelosi: President Bush’s official view, vigorously defended by the Department of Justice, is that the "exclusive means" provision is unconstitutional, and can therefore be disregarded. FYI)
I’ve basically got to conclude that there’s a portion of the House that strongly believes that it’s a political or policy imperative to loosen FISA’s restrictions on the President. Otherwise, I can’t see why we’re having such trouble with this.
[Important addendum note from Yglesias:
Second, one shouldn’t say that "the Democrats" caved on this. Enough Democrats did cave for it to pass, but others didn’t cave. Distinctions matter.]
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