Those of us who sounded off on Mark Udall’s capitulation on the FISA bill apparently all got the same nice form letter in response to our concerns. He’s happy to hear from us. Let me begin with what he wrote.

Dear Sam:

Thank you for letting me know your views on H.R. 6304, the Foreign Intelligence Surveillance Act (FISA) Amendments of 2008. I appreciate hearing from you.

This bill is designed to update FISA while putting an end to abusive domestic spying, and I voted for it in order to prevent a future program of warrantless surveillance by the executive branch. The bill is explicit that complying with FISA is the only way for the government to conduct surveillance. At the same time, it updates FISA, which was originally passed in 1978, to give us important capabilities to discover and stop terrorist activities. I fully understand why there is confusion and even anger that the legislation does not do more to require some telecommunications companies to respond to lawsuits for alleged privacy abuses in their actions to implement the Bush Administration’s warrantless surveillance after 9-11. But it does require a comprehensive review of that surveillance program by the Inspectors General of the Justice Department, the Directorate of National Intelligence, the National Security Agency, and the Defense Department, including a report to the Intelligence and Judiciary Committees of Congress. This will mean that past abuses by the Bush Administration will not go uninvestigated. Also, the bill does not provide absolute or criminal immunity for these companies, and no government official will receive civil or criminal immunity for past abuses.

The bill – like any compromise – is not perfect, but I decided voting for it was the best way to protect both our national security and the civil liberties that make our nation worth defending. A fact sheet and other materials about this bill and the issues raised by its passage are available at my website.

Thanks again for contacting me. For more information, please visit http://www.house.gov/markudall.

Warm Regards,

Mark Udall
Member of Congress

At this point it should be noted that I’m not a lawyer, and even if I were the corpus of the bill sounds like a meticulously crafted Machiavellian gauntlet aimed at flummoxing even the most gifted of analysts (Howard Dean called it a “114 page monster”). So I won’t be presenting myself as someone with a nuanced grasp of what we can and can’t and will and won’t do about the telecoms that knowingly violated our civil liberties. It seems evident enough that we probably had very little chance on that front anyway, and that the “compromise” provides further procedural smoke-and-mirrors covering the getaway.

That said, I do have some problems with Udall’s letter. Let’s take this piece by piece.

This bill is designed to update FISA while putting an end to abusive domestic spying, and I voted for it in order to prevent a future program of warrantless surveillance by the executive branch.

That’s nice, but the need to prevent future bank robberies and the need to do something about the people robbing the bank right now are not mutually exclusive goals.

I fully understand why there is confusion and even anger that the legislation does not do more to require some telecommunications companies to respond to lawsuits for alleged privacy abuses in their actions to implement the Bush Administration’s warrantless surveillance after 9-11.

The problem here isn’t that we’re confused, Rep. Udall. The problem is your reliance on weasel words and near-Rovian rhetorical misdirection. For instance, “alleged”? Please. Second, it’s not that the bill doesn’t force telecoms to respond, it’s that it guarantees that they won’t have to. Third – and I’m really disappointed in you on this one – is the “after 9-11” ruse. Because we pretty much know that the spying was happening well before 9/11, don’t we?

But it does require a comprehensive review of that surveillance program by the Inspectors General of the Justice Department, the Directorate of National Intelligence, the National Security Agency, and the Defense Department, including a report to the Intelligence and Judiciary Committees of Congress.

“Review” – what a great word. It wants us to hear that something is being done, but in actuality it says no such thing. The bill doesn’t require the administration to do anything. What value would a criminal trial be if the judge had no authority to impose sanctions? In short, the IG thing is a ruse designed to allow Vichy Democrats like you claim that you’re doing something when, in fact, all you’re doing is insulating a criminal administration and enabling its corporate co-conspirators.

This will mean that past abuses by the Bush Administration will not go uninvestigated.

You’d use words like “punished” here if you could. Your failure to do so makes clear the sleight-of-hand game you’re playing.

Also, the bill does not provide absolute or criminal immunity for these companies…

The bill does protect corporate individuals, if I’m reading correctly, and I can’t help smelling a weasel with that word “absolute.” In the end, though, it’s hard to imagine how, precisely, a successful prosecution – either criminal or civil – might be conducted once this bill becomes law. It may have been impossible anyway, but your actions have helped seal the door even more tightly.

Now we get to the part that bothers me the most:

The bill – like any compromise – is not perfect, but I decided voting for it was the best way to protect both our national security and the civil liberties that make our nation worth defending.

First, I’m all in favor of national security. I think we all are, so you can stop pandering and playing into the GOP’s “Dems are weak on defense” frame. The issue, though, is the way you present the twin goals – national security and civil liberties. There’s a balancing act here, and it’s being played out in a way that suggests that somehow there’s an either/or dynamic at work. I’m not 100% sure I buy that, but the more you say it that way, the easier it makes life for those who wish the rabble were a little more under control.

In essence, you’re explaining how you “compromised” between security and liberty. If you’ll recall, that word has a couple definitions. First: “settlement of differences by arbitration or by consent reached by mutual concessions b: something intermediate between or blending qualities of two different things.” This is what happens when I want something and you want another – we wind up with something that splits the difference.

The other definition is a little more sinister, though: “a concession to something derogatory or prejudicial.” In this sense of the word compromise signals a breach, a failing, a loss of position or stature or well-being. We can have our security compromised. We can have our principles compromised. We can have our democracy compromised.

I’m beginning to think that Rep. Udall and his collaborationist fellow Dems are using this sense of compromise instead of the first. I know the Republicans want and need us scared, and sadly the Democrats have been all too willing to help. But there are still a few of us who don’t want our liberty compromised. We don’t want the word compromise anywhere near the 4th Amendment.

We want representatives who understand, as we do, that if we undermine our freedoms, al Qaeda can go ahead and declare victory, pack up and go home to their families. I’m not going to be so extreme as to suggest that if telecom immunity passes then the terrorists have won the war, but I’d be a fool not to acknowledge that they’ve won a meaningful skirmish.

Congressman Udall, you’ve compromised on the Constitution. And while I’m not so stupid as to invest a lot of faith in elected politicians of any party – even if that pol is a “Boulder librul” – there’s no getting around a sad fact: you’ve compromised my trust.

Time will tell if, in doing so, you’ve also compromised your chances of victory in November.