A number of blogs have been buzzing about the recent exchange between Paul Mirengoff and Senator Dick Durbin (D-IL) on the topic of FISA and the NSA intercept program. The Bush administration argues that the post-9/11 congressional authorization of force provides statutory authority under FISA for the intercept program. Democrats disagree. This is therefore in part a dispute over the intent of the legislature when it passed the authorization of force. Mirengoff asks the obvious question: if the intent of Congress has been misinterpreted, why not pass a clarifying resolution? That would seem to settle the issue one way or the other. Durbin’s reaction to this idea can be compared to that of a Frenchman to a bar of soap, or perhaps a vampire to a clove of garlic.

I understand why the Democrats wouldn’t want to put such a clarifying resolution up for a vote. It would require them to take a clear stand on the underlying issue of whether this kind of surveillance is desirable or not. If they vote to deny the authority, they look like they’re more concerned about the alleged civil rights of terrorists than they are about the security of law-abiding Americans. That plays right into the Republican electoral strategy for the mid-term elections. Being perceived as siding with terrorists equals the political kiss of death. But if they vote to support the authority, they’d be validating the Bush administration’s position, acknowledging that the NSA intercept program was always legal under existing law. That would make them look like feckless, unprincipled opportunists who spent months attacking the President for something they wound up admitting was never a problem. It would also infuriate their left-wing activist base, which is already pretty torqued with them for failing to halt the confirmation of Samuel Alito to the Supreme Court. The end result would also be very politically damaging.

So I understand why the Democrats don’t want to push this line. The question in my mind is, given the above, why don’t the Republicans do it themselves? I can come up with some speculations, e.g.:

  1. The Republicans are spineless political idiots. (Always a good guess.)
  2. The Republican leadership in Congress thinks such a resolution would fail if put to an open vote.
  3. The Republican leadership thinks the public would react badly to the passage of such a resolution.
  4. There’s some technical legal reason why such a resolution wouldn’t settle the issue, of which I am not aware.

Right now, I’m inclined to go with reason (1), because I know it’s true.

(As an aside, I’d note that the conservative glee over Durbin’s flustered reaction to getting an actual hardball question can cut both ways. I know a number of Republicans who wouldn’t fare too well if faced with similar hard questions from equally well-informed interlocutors with differing political views. And I expect such will happen with increasing frequency in the future. Glenn Reynolds’ Army of Davids fights for more than one side.)

3 Responses to “A Very Good Question”
  1. Mithras says:

    4. There’s some technical legal reason why such a resolution wouldn’t settle the issue, of which I am not aware.

    A: 4. The Fourth Amendment. Congress can’t trump the Constitution, and a “clarifying” resolution would be open to challenge on its face in federal court.

    Maybe a little of 3 as well. A good portion of the public seem to react badly to losing their civil liberties, no matter how loudly the sheep bleat.

  2. Anton Sherwood says:

    As for the Dems, might they not be thinking that if the issue were forced the R majority would suck up to the President? Leaving it in doubt is better in some ways.

    I remember hearing some D senator from the Sixties asked why they didn’t bring a declaration of war to a vote: “We were afraid it would pass.”

  3. Alex says:

    Anyways… who thinks bush is a good president… even though i’am independant, just please post comments on what you think about the current president(George.W.Bush)basically what’s your likes or dislikes,….and if you support in what he is doing right now…….

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