(Updated) Bingaman Votes for Cloture on FISA

UPDATE: Also see my later post on this that includes a response from Sen. Bingaman's staff.
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Given Sen. Jeff Bingaman's recent cave-in on offshore drilling, I'm not surprised he's again taking what he apparently believes is the politically easy way out on the surveillance state. Even so, I'm still disappointed that Bingaman voted yesterday evening for cloture on the so-called FISA "compromise" bill that was passed previously by the U.S. House.

The cloture measure passed with 80 Senators voting yes, 15 voting no and 5 abstaining or absent. A total of 31 Democratic Senators and 48 Republican Senators and Joseph Lieberman voted for cloture on the Motion to Proceed with the FISA bill. The list of Dems with spines and a genuine respect for the U.S. Constitution, its Amendments and accountabilty for lawbreaking is short indeed:

NAYs ---15
Biden (D-DE) Boxer (D-CA) Brown (D-OH) Cantwell (D-WA) Dodd (D-CT)	Durbin (D-IL) Feingold (D-WI) Harkin (D-IA) Kerry (D-MA) Lautenberg (D-NJ)	Leahy (D-VT) Menendez (D-NJ) Sanders (I-VT) Schumer (D-NY) Wyden (D-OR)

Perhaps even more disturbing is the fact that Barack Obama, Hillary Clinton and John McCain didn't believe the vote was important enough to show up and take a stand:

Not Voting - 5
Byrd (D-WV) Clinton (D-NY)	Kennedy (D-MA) McCain (R-AZ)	Obama (D-IL)

What Comes Next
I imagine that a significant number of Dem Senators who voted for cloture will eventually vote against the bill itself, thus attempting to have their cake and eat it too. We all know by now how this works, having seen the same thing happen in any number or previous Dem collapses in the Senate. The best time to defeat a bill like this, given the current makeup of the Senate, is at the cloture stage -- by making sure the bill doesn't get the 60 votes needed to go forward. Once it gets to the Senate floor, we've pretty much lost the power to significantly change or defeat it. Even so, Senators Chris Dodd and Russ Feingold are still threatening a filibuster if the telecom immunity is left intact.

It seems obvious to me that too many Dems just want to get this controversial issue off the table so they can concentrate on election season rhetoric without the "distraction" of issues like illegal domestic surveillance and a "unitary presidency" power grab by Bush et al. As you may recall, they took a similar stance on the vote on the invasion of Iraq. Their position then and now: Get it out of the way so we don't have to answer the eternal whining from the right about being "soft on security" and we can move on to discuss economic issues. They don't seem to get that the eternal nature of the GOP whining means it will go on regardless of whether there's an issue on the table or how Dems vote. That they still haven't gotten this lesson is almost beyond comprehension at this point.

See this post by mcjoan on Daily Kos for a rundown on newspaper editorial board coverage of the Dems' cave-in. It isn't pretty.

A Counter View: Bait and Switch
For a view that's counter to what I've just written, see A Pragmatist's View on FISA by a former criminal defense appellate attorney on Kos. Her main point is that our Fourth Amendment rights are already entirely compromised by provisions in the Patriot Act that keep FISA court documents secret. Thus the current FISA bill is essentially meaningless and it would be a mistake for Obama and other Dems to draw a line in the sand about it at this time. Quote:

In terms of constitutional safeguards, the current FISA bill is a non-issue.  Yes, it allows telecoms to raise "color of law" immunity as an affirmative, threshhold defense.  And yes, that means the telecoms very likely will never be held to account for violations of FISA.  But the secrecy of FISA warrants themselves voids the Fourth Amendment, if information gained from those warrants can be used in a criminal trial.

I'm convinced that Barack Obama recognizes this.  I'm sure he recognizes that this bill is a classic political bait-and-switch, wrapping telecom immunity in the mantle of "safeguarding our constitutional rights," when in fact those rights are already voided by use of secret, non-reviewable FISA warrants to gather information for criminal cases.  I'm sure Barack Obama realizes that this petty knoll is not "the hill to die on."

"The hill to die on" is the USAPA's breaking down the wall of separation between intelligence-gathering and criminal investigation.  And that is not even at issue yet.  We'll need a Democratic president, and at least 60 Democratic senators, to fight that battle.

So please, folks, let's keep this bill in context.  If you're counting on FISA to safeguard your Fourth Amendment rights ... they're already gone.

Maybe she's right. What do you think? To get even more confused, read Sen. Russ Feingold's floor statement from yesterday's session. I don't see a statement about Bingaman's FISA vote on his Senate website.

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