Behind the FISA Flop

Monday's resignation announcement by discredited Attorney General Alberto Gonzales threw into even sharper relief the capitulation in early August by the Democratic-led Congress on one of Fredo's signature issues, the warrantless surveillance of Americans.

The fallout over the passage of the bill that expands the president's surveillance powers has prompted a new rift between progressives and the Democratic leadership. Blunt ACLU attack ads launched last week charge that House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid acted like "sheep." The disenchantment with Congressional Democrats continues although Pelosi stated right after the administration's revised Foreign Intelligence Surveillance Act (FISA) bill passed the House that she'd seek major changes to the "unacceptable" legislation when Congress returns in September. She and other leaders have also tried to mollify critics by saying it was only a six-month extension.

But the Democrats' weakness on this issue raises questions about the ability of progressive organizations and bloggers to work together effectively -- and quickly -- to mobilize opposition to the administration's extremist legislative proposals or to halt its abuses, despite Bush's Nixon-like approval ratings.

By now everyone from The New York Times editorial page to the bloggers on DailyKos have denounced Democrats for being cowardly, spineless, and weak on the FISA bill. (Although some, such as Matt Stoller of OpenLeft, say most party leaders don't really care about civil liberties.) Still, the steady failures of Congressional Democrats to stand up to the Bush administration on everything from the draconian Military Commissions Act to Iraq War deadlines makes it clear that activists must do a far better job of helping to ensure that Congress won't be stream-rolled yet again by the administration's mau-mauing on the "War on Terror."

A total of 41 Democrats in the House and Senate approved the administration's "shameful" eavesdropping program. After the vote, according to The Washington Post's E. J. Dionne, Congress was deluged with about 200,000 angry e-mails and phone calls, fueled in part by a Moveon.org e-mail alert bemoaning the passage of the legislation. The 200,000 complaints may sound like a lot, but they came too late to halt a major assault on civil liberties. In contrast, earlier this year when fans of Web radio faced the loss of their favorite programming because of a threatened rise in royalty rates, they deluged Congress with over a million e-mails and phone calls. The effort, ably organized by SaveNetRadio.org, came before the higher royalty rates were scheduled to be imposed. So why didn't progressive groups and the highly-touted blogosphere mobilize in a similar manner to stop a measure that could potentially destroy the privacy of Americans?

The Democrats may have shown too much trust in the Bush administration after being stampeded into negotiations over the shape of the FISA bill, but the experienced activist groups and sophisticated bloggers largely were, in turn, blindsided by the Democrats' willingness to give the administration virtually unlimited power to seize records and eavesdrop on Americans communicating with foreigners. Caroline Fredrickson, the legislative director of the ACLU, is still fuming over the way Democrats reneged on reassurances she says they offered in late July to liberal groups -- particularly at a key meeting on July 20 -- that they wouldn't move any major revisions to the current FISA law before getting the answers they sought about the current warrantless wiretapping program.

"They turned around and screwed us over -- and the Constitution -- all at once," she says of the fast-moving FISA legislation that left the ACLU and other groups scrambling to stop it. In addition, as Fredrickson pointed out in a letter responding to criticisms (since retracted) by Stoller of OpenLeft that the ACLU did little to stop the bill, "Pelosi and friends spent the entire week negotiating with the [Director of National Intelligence Mike McConell] and cut out ALL the civil liberties groups -- not just the ACLU…They did not listen to us. It was dem [sic] leadership who scheduled the vote on these particular bills. Why be mad at us and not at them?"

ACLU lobbyists and communications staff did their best to play catch-up on the FISA revisions before Congress recessed in August. The organization's first prescient press release -- largely ignored -- came on Saturday, July 28, and denounced the president's radio address asking to "modernize" the FISA law with warrantless eavesdropping on foreigners overseas. (Bush didn't mention Americans being targeted, of course.) But the ACLU's staff wasn't much worried about the Democratic-led Congress going along with the president's push to gut FISA until Rep. Jane Harmon (D-CA), the centrist chair of a House intelligence subcommittee, revealed on Sunday's CNN's Late Edition show that the Democrats were going to move their own, somewhat more moderate FISA bill, which still significantly weakened court oversight of proposed sweeping eavesdropping powers.

Fredrickson recalls seeing the show and saying to herself, "Uh-oh." She adds, "We started lobbying like crazy" early the next week, but while still being kept in the dark about the details of administration proposals. The ACLU didn’t get a full copy of the draconian proposal until Monday, July 30, and didn’t finish its analysis of the bill until the next day, when Fredrickson started e-mailing journalists at The New York Times and elsewhere. Rachel Perrone, the ACLU's legislative communications associate who also handles blog outreach, followed up on Harmon's appearance with an alert she sent select bloggers on Tuesday, July 31, warning about the fear-mongering underway in Congress. That day the ACLU also posted a warning on its website saying that the administration's bill could sweep up Americans in warrantless surveillance. DailyKos blogger McJoan, ahead of most bloggers and virtually all mainstream media, relayed the news that same Tuesday: "The changes include allowing warrantless wiretapping of Americans on American soil, so long as someone on the other end is a target in a foreign country."

But in e-mail alerts to its members, the ACLU initially chose to emphasize to the importance of pressuring Democrats in Congress to avoid passing a bad, rushed FISA law in the first email alert it sent on Wednesday, Aug. 1.

Hamstrung by a lack of specifics about the Democrats’ evolving proposal and by deceptive administration claims that it only wanted to monitor foreign-to-foreign communications, the ACLU offered a simple message in alerts to activists that week: "Take Action: Tell Congress NOT to cave in to fear." The same day that message went out, The New York Times ran with the story, headlined "Democrats scrambling to expand eavesdropping," but buried it on page 12. The article completely missed the threat to Americans caught up in warrantless surveillance, saying blandly that the bill only involved "some purely foreign telephone calls and e-mails." Perrone recalls, "It was a tough week. Congress was heading towards a recess, there was YearlyKos, and that was when all the shit is hitting the fan back in D.C. I'm literally chasing people down hallways."

Indeed, the ability of the most knowledgeable groups, such as the ACLU, to mobilize opposition to the bill was hampered, ironically, by difficulties in reaching out successfully to leaders of the liberal blogosphere who were gathered in Chicago for the YearlyKos conference Aug. 3-6. Perrone spent her time at the conference desperately scanning her BlackBerry for information from the Washington office on legislative developments. She also tried to relay -- personally and by e-mail -- the relatively little she could find out to a select group of knowledgeable civil-liberties bloggers.

Glenn Greenwald, perhaps the most influential civil-liberties writer on the Web, recalls that despite many leading bloggers being at the YearlyKos convention, he and most others didn't even start focusing on the menace the bill posed until newspapers reported that the House would consider a FISA bill on that Friday, Aug. 3. It later became clear that this controversial measure was being considered under a no-amendment "suspension" rule that required a two-thirds vote to pass, essentially dooming the Democrats' more moderate version. (Hill staffers say the rule was needed to prevent the Republicans from pushing an even worse alternative measure that could pass.) On that same Friday, according to Newsweek, even liberal stalwarts such as Rep. John Conyers (D-Mich.), the House Judiciary Committee chairman, urged their colleagues to pass a FISA bill because otherwise they could be vilified as weak on security if there was a terrorist attack during the August recess. On Friday night, the Senate passed the Bush administration's version.

Looking back, Greenwald admits now, "I thought there was nothing to worry about. There was no way the Democrats will do anything beyond fixing this one gap [foreign-to-foreign communications]. It was unthinkable."

The issue didn't truly catch fire at YearlyKos until Saturday morning, when a packed room heard Greenwald talk about the "outrage" unfolding on Capitol Hill with the ACLU's executive director, Anthony Romero, on a civil liberties panel. The House approved the Senate version on Saturday night, and the president signed it into law on Sunday, Aug. 5.

The progressive movement was essentially caught off-guard by rapidly moving legislation that threatens some of our most basic values. Here's a thought experiment: If the situation were reversed, and a weakened liberal Democratic president tried to quickly ram through legislation, say, restoring full federal funding for abortion, would a Republican-led Congress and the right-wing media let it slide through without a rapid response and a real fight? Not likely.

Perrone, for one, has drawn some hard lessons about the ACLU's outreach efforts to the blogosphere. "It could be improved on our side by being more consistent. We knew the bill was moving, but we waited until things were on fire." Previous administration proposals to win legislative authority for warrantless eavesdropping died in Congress in the spring, so, she points out, "things fall off the radar until the ship's ready to run into an iceberg."

For their part, some influential bloggers distrust not only Congressional Democrats but the traditional advocacy groups that should be their natural allies. Although Stoller, who has specialized in using the Web to mobilize activists, now believes that the ACLU did its best to fight the FISA bill, he condemns what he sees as slow-footed, inept communication and organizing strategies by the ACLU and traditional groups on a host of progressive issues, pointing to the ACLU's Find Habeas campaign as "patronizing and idiotic." (The ACLU defends that campaign as part of a broader lobbying initiative that is causing Congress to revisit the habeas issue.)

"We have to leverage these groups to do what they're supposed to be doing," he says. However, he contends that many bloggers don't take what seems to be the obvious step of linking to well-established advocacy groups' Congressional contact pages because "we don't trust them." Yet that was the secret of the successful effort to save net radio -- many websites linking to a well-organized lobbying group. As an advisor on the comparable "net neutrality" campaign, Stoller points to factors of its success missing in some traditional groups' use of the Web: "It explained the politics clearly, and the people being asked to participate trusted those doing the asking." But he won't acknowledge the failures of the blogosphere to work together with groups that share their values by amplifying those groups' lobbying resources.

Yet with the Bush Dog initiative that Stoller's Open Left is launching to hold conservative Democrats accountable, he's taking an important step -- independent of the major progressive advocacy groups -- in using the Web to force the Democratic Congress to stand up to Bush's far-right agenda. "Terrorism is the third-rail issue for Congressional Democrats, but the base has moved on," adds the ACLU's Frederickson. But the key factions in today's progressive movement won't succeed until they learn to work together to create enough pressure on Congress to vote on behalf of those who voted the Democrats into power.

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