"This Constantly Pulsating Fear"—Feingold Talks FISA with Brian Beutler

Living up to predictions by Wisconsin Senator Russ Feingold of "the caving of very large numbers of Democrats [on] an awful piece of legislation," the Senate remains poised to pass the Protect America Act (PAA) in a form that will allow telephone companies and internet providers immunity from prosecution for forking over consumer information to government spymasters. The bill confers immunity that would be retroactive to the first days of a warrantless spying program originated by the Bush administration following the 9/11 attacks. In an interview with The Media Consortium's Brian Beutler, Feingold attributed Democrats' weakness to "this constantly pulsating fear of being accused of being soft on terrorism."

The July 8, 2008, debate on the Senate floor focused on an amendment that would cancel telecom immunity from the current version of the legislation, which is being pushed by the administration as an update to the Foreign Intelligence Surveillance Act of 1978, known simply as FISA. Perhaps the most passionate advocate of the anti-immunity amendment is Feingold, whom Beutler interviewed last week about (among other things) why the Senate Democrats are likely to let the administration have its way with the spying legislation—including telecom immunity.

The immunity debate saw a couple of strange-bedfellow pro and con tag teams arguing the amendment, which is offered by Connecticut Democrat Chris Dodd. Arguing against the amendment and in support of immunity were West Virginia Democrat Jay Rockefeller and Missouri Republican Kit Bond.

Supporting Dodd was the team of Feingold and Republican Arlen Specter of Pennsylvania. Specter focused on last week's decision by a federal judge who ruled that the Bush administration's justification for the warrantless spying scheme, known as the Terrorist Surveillance Program, had no legal merit. Passing the administration's wish-list surveillance bill, Specter said, will amount to circumvention of the legal system. Feingold, under questioning by Specter, pleaded a constitutional case.

Following is an excerpt of Beutler’s interview with Feingold:

BRIAN BEUTLER On FISA, a lot of people were impressed with the House Democrats’ performance when they refused to advance the Senate bill. In the interim, what happened? Where was the pressure coming from within the Democratic party to revisit this issue and not wait at least until there was a new administration in place?

SENATOR RUSS FEINGOLD There's always the pressure on this. There's a very interesting thing that happens where people get fired up, people [who] really have good instincts about civil liberties and would really prefer to be on this side. So you get kind of a head of steam, which I noticed happened with the blocking of the reauthorization of the Patriot Act for a while, until people caved. And it happened for a while even in the Senate on the PAA. But what the House did was really impressive—that a group of people, including Steny Hoyer and others, stood up and said, "No, we're not gonna do this."

But the problem is that there's this fear that grows over time, that somehow Democrats are going to get hit over the head by claims that they're soft on terrorism. It always rears its head, especially when we're heading into a recess period or an election period. Now, the truth is that we could simply extend the bill for a year, sunset it. We could extend the orders. But the administration uses these intimidation tactics, and far too many Democrats fall for it. They think that somehow the administration's going to win this argument. I don't think that's true. I think the Democrats did great the last few months when the House stood up to [the administration]. But there is this sort of inertia—if that's the right word—that leads to ultimately the caving of very large numbers of Democrats, even voting for an awful piece of legislation like this. That's the only way I know how to describe it. I don't know, the day-to-day pressure; it's like this constantly pulsating fear of being accused of being soft on terrorism.

BB How, politically, does one change that mindset—that being tough on national security means that the Democratic party has to support wars and the erosion of civil liberties?

RF I think you show people that those who stand firm on this do just fine politically. I like to think of myself as an example of that. The truth is that if you properly articulate that you want to balance national security and make sure we protect civil liberties at the same time, and take the time to go through the arguments—which are, very frankly, easy to win—then you can prevail and show people that you don't need to buckle at the knees on this. But it requires a little patience. It requires a little faith in peoples' willingness to listen. That's how in the long run you prevail. And I'm hoping that a lot of people who run this time, unlike a lot of people who ran in 2006, are held accountable. We have a lot of Democrats, even some who voted to get us out of Iraq, who aren't voting properly on this. That is very damaging to our efforts to improve the bill.

Update (July 10, 2008): Yesterday, the Senate rejected the amendment that would have stripped the Protect America Act of immunity for telephone and Internet providers who participated in the government’s wiretapping program; the Senate then voted 69 to 28 in favor of the bill, which now goes to President Bush for signing. In contrast to his primary rival Senator Hillary Clinton, Senator Barack Obama voted in favor of the bill. Senator John McCain was not present for the voting.