The New FISA Law

Here's what we do know. We know that the Democratic leadership rightly conceded to Adm. Michael McConnell, the once widely respected director of National Intelligence, to allow eavesdropping on foreigner-to-foreigner communications routed through American phone companies (no biggie; we've always spied on foreigners). We know that the Democrats thought they had a deal until McConnell, who is supposed to be nonpartisan, went back to the White House and got fresh marching orders to squelch reasonable judicial oversight by the FISA court. And we know that the administration's new position was that the attorney general (the disgraced Alberto Gonzales) should have the sole authority to spy without a warrant on any American talking to a foreigner, even if it's you and the guy from Mumbai fixing your printer.

Then the Democrats said: "Wait a minute! That's unconstitutional!" Right? Actually, no, they didn't. Even liberals like Rep. John Conyers, chairman of the House Judiciary Committee, argued in two heated, closed-door meetings on Aug. 3 that the Democrats might as well cave. Otherwise, they would be pounded during the August recess for ignoring national security and destroyed as a party if the country were actually attacked. Even though the leadership and 82 percent of House Democrats voted against the bill, they did not block it, delay the recess and hold the Congress in session. The private excuse was that the liberal base wouldn't be satisfied no matter what they did, and that Senate Majority Leader Harry Reid couldn't make the more conservative Senate go along anyway. Apparently, there's always an excuse for leaving for vacation on time.

Afterward, House Speaker Nancy Pelosi said publicly that many provisions were "unacceptable" and the House would revisit the newly signed legislation "as soon as possible." Democrats obtained a sunset clause that requires the whole thing to be reauthorized in six months. But real damage has been done.