The Democratic leadership in the Senate, Republican knuckle-dragging in the same chamber, and the mediocre skills of whoever wrote the final version of the FISA bill, have combined to give Sen. Barack Obama a second chance to make a first impression.
And he damned well better take it. The Senate vote on this tortured and reckless piece of legislation has now been postponed until after the 4th of July break. The Democrats, completing their FISA experience, a collective impression of Homer Simpson falling off a cliff and hitting every bramble on the way down, didn't exactly plan this fortuitous delay.
Last week, the vote on their cave-in was imminent. But, while arguing over a piece of housing legislation, about how many mortgage lenders can dance on the head of a pin, Republicans dithered so long about protecting their constituents, the banks, that the Senate calendar got backed up.
This, in turn, gave Senate Majority Leader Harry Reid some time to think.
There was one among his group, chosen to run for President, who had loudly assailed the idea of handing a get-out-of-jail-free card to corporations who had approached definitional fascism by breaking the law in concert with the Bush Administration.
But this Senator had suddenly realized, that to the large group of voters who operate with an information base that would make Cliffs Notes look like the Encyclopedia, if, in the final vote, he stood against FISA, he would hand them a rock with which they could hit him over the head, a rock wrapped up in a piece of paper reading:
"Obama voted uh-uh… thing terror stop." Thus, Sen. Obama, was born your first second chance.
Sen. Reid was kind enough to help you out by composing an amendment that would keep FISA, which you rightly endorse, but strips out the telecom immunity, which you rightly oppose.
It's a protest, a decidedly lame one, but in our daily world of political transactions, voting for the amendment when it has no chance of passing and has been in essence constructed as pure Obama CYA, that is a petty crime.
Whether it will do more to harm your premise of "new politics" than to your credibility as an immunity-opponent, is for you, Senator, to assess.
And live with. It would be sweet to have a pure, politics-free president, but the last of those retired from office in 1797. And while we've all quoted the farewell address of "The Father Of Our Nation" for 211 years now, nobody seems to want to remember that its point was to urge his children that: whatever you do, for God's sake, don't form political parties, some day they will kill you.
Anyway, Senator, your problem here isn't the backlash about telecom immunity, and it isn't really about your political fluidity on the FISA bill.
Your problem is what happens even if this plays out according to plan next week:
* You vote for the anti-immunity amendment
* The anti-immunity amendment fails
* You vote for the FISA legislation
* The FISA legislation passes
* Senator: The Republicans still run against you with the 'elections-for-dummies 'message: "Obama voted uh-uh… thing terror-stop."
Because, inside the obscenity that was Charlie Black's comment about how a terrorist attack in this country would be good for his boy John McCain's chances for election.
Inside the inhuman calculation that Benazhir Bhutto did not die in vain, she helped McCain in the New Hampshire primary. There is a sad and cynical reality. The Republicans can scare some of the people all of the time, and they can scare all of the people some of the time. This is all they are right now. Nobody ever said it better than did Aaron Sorkin in his script for the movie "The American President":
"Whatever your particular problem is, friend, I promise you, Bob Rumson (and for Rumson, read "McCain") is not the least bit interested in solving it. He is interested in two things and two things only: Making you afraid of it, and telling you who's to blame for it."
Republicans, with almost no exceptions, have no true credibility on counter-terrorism, no track record of prevention or amelioration, and their president can't even remember the name of the skyscraper he claims to have saved in Los Angeles.
And yet, somehow, the Republicans have managed to convince the public that it doesn't matter that Mr. Bush had already completed 22 percent of his first term, when he, his administration, and his party, failed so catastrophically on 9/11.
The President and party who were at fault, were magically transformed into the president and party who would never let it happen again. An unjust... repellant... nefarious, trick. But, politically, rather a neat trick. Senator, the Republicans are going to paint you as soft on terror no matter how you vote on FISA.
Or how you vote on the Telecom Immunity Amendment. Or on the next farm bill. Last week it was Grover Norquist calling you "John Kerry with a tan." By November 1st, it'll be Dick Cheney calling you "Osama Bin Laden with a tan." When you announced your support of this latest FISA bill, with or without the telecom immunity, the Republicans raced to get out a press release accusing you of flip-flopping.
You shared the exact same position, on which they are running their entire campaign and they criticized you anyway!
So, Senator, from their point of view, they think they've got you boxed in. Vote for FISA and you've contradicted yourself. Vote against FISA and it's "Obama voted uh-uh… thing terror-stop." Vote for FISA and against immunity, and it's: political expediency, and Democrats soft on terror, and "Obama voted uh-uh… thing terror-stop." This is a problem, Senator.
Because, flatly, of all the measures that can be taken to aid our damaged nation, and our de-valued constitution, the first, if not the foremost, is not blocking telecom immunity, but making sure no Republican is in the White House past noon next January 20th. Of all the remedial efforts against the Bush Administration's high crimes and misdemeanors, and of all the prophylactic steps against further inroads against the freedoms of the citizens of this nation and the rights of everyone else, the primary step must still come to us through the prism of politics.
Would that it were otherwise. But it ain't. Frankly, Senator, this political tight-rope act you've tried on FISA the last two weeks, which from the outside seems to have been intended to increase the chances of your election, probably hasn't helped in the slightest. There is, fortunately, a possible, a most unexpected, solution. Your second second chance.
Since the final version of the FISA bill was passed down from on high, John Dean has been reading it, and re-reading it, and cross-referencing it with other relevant law, and thinking. Something bothered him about it. Or, more correctly, something didn't bother him about it. Turns out lawyers at the ACLU have been doing the same thing for the last ten days. John compared notes with them, and will be devoting his column at "Find Law" this week, to this unlikely conclusion:
The Republicans who wrote most of this bill at Mr. Bush's urging, managed to immunize the telecoms from civil suits. But not from criminal prosecution. Senator, here is John Dean's summary of his findings, which he sent me this morning. "It is clear not only from the language of the bill which must be read in the context of other, related statutes to be clearly understood, but also from the legislative history, that there is absolutely no criminal immunity for anyone in these FISA amendments."
More over, Senator, it seems as if a lot of people have known this, for a long time."During the January 24th, 2008 debate in the Senate, Sen. Sam Brownback noted, "The immunity provisions would not apply to the Government or Government officials. Cases against the Government regarding the alleged programs would continue. And the provisions would apply only to civil and not criminal cases."
In fact, Senator, just last week, Attorney General Mukasey and Director of National Intelligence McConnell sent a letter, for the record, to House Speaker Pelosi emphasizing that the liability protection, quote, "does not immunize any criminal conduct." And if you ask, Senator, about the President responding to all this by belching out a series of pardons or a blanket pardon to those who broke the law on his behalf, Dean has you covered here, too…
It "would require acceptance by them of the fact that they had broken the law, and thus be an admission of guilt."
"And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch."
"It would be an admission by Bush, too, of his own criminal culpability which is why Nixon refused to grant his aides a pardon."
Senator, sometimes it is better to be lucky, than good. Keep your eye on the wording of the legislation to make sure the Republicans don't realize its flaws. Then vote for the amendment to strip telecom immunity out of the FISA bill. Then after that fails, vote for the FISA bill, if that's your final answer. Then the minute the president has signed the FISA bill, you announce that you voted for it because it renews FISA and because it permits a bigger prize than just civil suits, that it allows for criminal prosecution of past illegal eavesdropping.
Say, loudly, that your understanding of this bill is such, that if you are elected, your Attorney General will begin a full-scale criminal investigation of the Telecom Companies who collaborated with President Bush in eavesdropping on Americans. And mention that your Attorney General will subpoena such records, notes, e-mail, data, and testimony, from any and all Bush Administration officials, FBI or CIA personnel, or any members of the Executive Branch, who may have as much as breathed in the general direction of these nefarious acts of domestic spying at Mr. Bush's behest.
Wait, you say there's a political hit waiting for you there too? Another "Obama voted uh-uh… thing terror-stop." Actually, Senator, you've already gone down this road, when you spoke to my colleague, Will Bunch, of the Philadelphia Daily News, on April 14th of this year. He asked about the possibility of criminal investigations of the 43rd President and his henchmen.
"What I would want to do," you told him, "is have my Justice Department and my Attorney General immediately review the information that's already there and to find out, are there inquiries that need to be pursued. I can't prejudge that, because we don't have access to all the material right now."
"You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt, because I think we've got too many problems we've got to solve."
"Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is: nobody above the law. And I think that's roughly how I would look at it."
Make this clear, Senator. You've already taken the political hit from the Right, for saying you'd seek to strip out, or rescind immunity. You've already taken the political hit from the Left, for saying you'd vote for the FISA bill even with the immunity. You've paid the political price in advance. Now buy yourself and those who have most ardently supported you something worth more than just class action suits against Verizon.
Explain that you are standing aside on civil immunity, not just for political expediency, but for a greater and more tangible good, the holding to account, of the most-corrupt, the most dangerous, and the most anti-democracy presidential administration in our long history.
Of course, if you disagree with this interpretation, if you think the FISA bill doesn't have the giant loophole, or if you don't think you, as president, would be ready to support criminal prosecution of well, criminals then your duty is clear.
Vote against the FISA bill, if it still carries that immunity. The Republicans are going to call you the names any which way, Senator. They're going to cry regardless, Senator. And as the old line goes: give them something to cry about.