Them Dems

Congressional Democrats have capitulated – again – to the Bush administration. Perhaps by the end of this week, a Democratic Congress will send Bush legislation granting telecommunication providers immunity for conducting secret surveillance on Americans.

The capitulation drives at the heart of constitutional democracy. Sen. Russ Feingold states the consequences of enacting the “compromise” version of FISA:

“This is a deeply flawed bill, which does nothing more than offer retroactive immunity by another name. We strongly urge our colleagues to reject this so-called ‘compromise’ legislation and oppose any efforts to consider this bill in its current form. We will oppose efforts to end debate on this bill as long as it provides retroactive immunity for the telecommunications companies that may have participated in the President’s warrantless wiretapping program, and as long as it fails to protect the privacy of law-abiding Americans,” the senators said in a joint statement Tuesday.

“If the Senate does proceed to this legislation, our immediate response will be to offer an amendment that strips the retroactive immunity provision out of the bill. We hope our colleagues will join us in supporting Americans’ civil liberties by opposing retroactive immunity and rejecting this so-called ‘compromise’ legislation.”

A Dodd-led filibuster in February attracted just 29 supporters, short of the 41 necessary to keep a bill from coming to a vote. Speaking in Washington Monday, Feingold was pessimistic about their chances this time around.

It is all a Democratic dance, designed to orchestrate and articulate the opposition of millions of Democrats to the legislation, but to ultimately permit passage of the legislation. In the final analysis the Democratic Party will have joined the “death of a thousand cuts” being inflicted on traditional constitutional protections.

In his most substantive break with the Democratic Party's base since becoming the presumptive nominee, Obama declared he will support the bill when it comes to a Senate vote, likely next week, despite misgivings about legal provisions for telecommunications corporations that cooperated with the Bush administration's warrantless surveillance program of suspected terrorists.

In so doing, Obama sought to walk the fine political line between GOP accusations that he is weak on foreign policy -- Sen. John McCain (R-Ariz.) called passing the legislation a "vital national security matter" -- and alienating his base.

"Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program," Obama said in a statement hours after the House approved the legislation 293-129.

It is perhaps the unkindest “cut” of them all. In 2007, Sen. Obama promised to filibuster similar legislation. In a November, 2007 speech, Sen. Obama stated his opposition:

"because we're not a nation that locks people up without charging them. We will restore habeas corpus. We are not a nation that undermines our civil liberties. We are not a nation that wiretaps without warrants."

Serious implications attach to Sen. Obama’s assertion that as President he would “closely monitor” the FISA program. As President, he would place himself in the position of arbitrating the balance of constitutional powers for warrantless searches of American citizens. Is the theory underlying his promise any different than Bush’s concept of a “unitary President?”

It matters not whether the assault on constitutional principles is inflicted by Democrats or Republicans, or in this case both. For Democrats, it should be no consolation that a potential Democratic President would be the “unitary” President monitoring FISA. The constitutional principle is that we are a nation of laws – not men.