By Dan Froomkin
Special to washingtonpost.com
Wednesday, February 13, 2008; 12:14 PM

Democrats on the stump like to talk about hope and change, but on the Senate floor yesterday they once again succumbed to fear.

Eric Lichtblau writes in the New York Times: "After more than a year of wrangling, the Senate handed the White House a major victory on Tuesday by voting to broaden the government's spy powers and to give legal protection to phone companies that cooperated in President Bush's program of eavesdropping without warrants. . . .

"The outcome in the Senate amounted, in effect, to a broader proxy vote in support of Mr. Bush's wiretapping program. . . .

"Republicans hailed the reworking of the surveillance law as essential to protecting national security, but some Democrats and many liberal advocacy groups saw the outcome as another example of the Democrats' fears of being branded weak on terrorism.

"'Some people around here get cold feet when threatened by the administration,' said Senator Patrick J. Leahy, the Vermont Democrat who leads the Judiciary Committee and who had unsuccessfully pushed a much more restrictive set of surveillance measures. . . .

"[W]ith Democrats splintered, [Sen. Chris] Dodd acknowledged that the national security argument had won the day. 'Unfortunately, those who are advocating this notion that you have to give up liberties to be more secure are apparently prevailing,' he said. 'They're convincing people that we're at risk either politically, or at risk as a nation.'"

Here are the two key votes: 18 Democrats joined with a united Republican voting bloc to reject an amendment that would have stripped the immunity provision from the bill; then 19 Democrats joined the Republicans to pass the bill.

James Rowley writes for Bloomberg about how Bush is heading to another "legislative victory by evoking fears of a new terrorist attack. . . .

"'Holding all the Democrats together on this, we've learned a long time ago, is not something that's doable,' Senate Majority Leader Harry Reid told reporters."

Paul Kane writes in The Washington Post that the vote was "a key victory" for the White House.

The "Senate Democrats' split on immunity echoes past party divisions over national security issues, including how strongly to confront Bush on the tools the administration uses to target suspected terrorists and their allies."

The bill isn't home-free quite yet.

Kane writes: "The Senate's action, days before a temporary surveillance law expires Friday, sets up a clash with House Democrats, who have previously approved legislation that does not contain immunity for the telecommunications industry. The chambers have been locked in a standoff over the immunity provision since the House vote Nov. 15, with President Bush demanding the protection for the industry. . . .

"House leaders vowed again yesterday to oppose the telecom immunity provision until the White House releases more information about the controversial warrantless surveillance program it initiated shortly after the terrorist attacks."

In a letter to White House Counsel Fred Fielding, Judiciary Committee Chairman John Conyers took a tough line: "Although some of the requested materials have been provided to some Judiciary Committee members, much of the information has not, and it is crucial that this material be produced as promptly as possible so that Congress may fulfill its legislative and oversight responsibilities. Indeed, review and consideration of the documents and briefings provided so far leads me to conclude that there is no basis for the broad telecommunications company amnesty provisions advocated by the Administration and contained in the Foreign Intelligence Surveillance Act (FISA) bill being considered today in the Senate, and that these materials raise more questions than they answer on the issue of amnesty for telecommunications providers. In order to more fully understand and react to the Administration's request for broad-based and retroactive amnesty for telecommunications firms, who may be in a position to divulge information concerning misconduct by Administration officials, it is imperative that your provide this information to us as promptly as possible, as we have been asking for many months on numerous occasions."

But just how seriously does the Bush White House have to take such a demand from the Democratic Congress? History suggests: Not very seriously.

As Greg Miller writes in the Los Angeles Times: "Senior congressional aides said there was no clear path to a compromise on the issue. But a series of recent defections by moderate Democrats in the House raises prospects that the White House position -- or something close to it -- eventually may prevail."

The Boston Globe's Charlie Savage explains why the immunity provision is so significant. It is "a major step toward closing the last forum in which critics have challenged the operation's legality. . . .

"Although news of the program initially prompted a bipartisan uproar, congressional attempts to investigate it largely petered out. Then, in August 2007, with little prior debate, Congress hastily enacted the Protect America Act, which essentially legalized a form of the warrantless surveillance. . . .

"[P]rivacy advocates and critics of the administration's expansive theories of presidential power . . . have pushed the lawsuits against the telecoms in hope of winning a definitive ruling that the program was illegal, thereby keeping it from becoming a precedent for the future.

"'When an over-reaching executive wants to conduct illegal spying in secret, those companies are the only ones in a position to say "no" and ensure that the law is followed,' said Kevin Bankston, a senior staff attorney with the Electronic Freedom Foundation. . . .

"'Therefore,' Bankston added, 'it's critical that when they fail to follow the law, they need to be held accountable -- to ensure that next time the government attempts to engage in illegal spying, those companies will say "come back with a warrant."'"

Siobhan Gorman writes in the Wall Street Journal (subscription required): "If the White House prevails in the final negotiations, it will hand Republicans a potent weapon for their 2008 campaign arsenal by showing that their party, even in its weakened state, can still beat Democrats on national-security issues."

Bush, not surprisingly, is keeping the pressure on. Yesterday, he released a written statement, praising the Senate for "a strong, bipartisan vote."

This morning came the hard sell, in an Oval Office appearance: "At this moment, somewhere in the world, terrorists are planning new attacks on our country," he said. "Their goal is to bring destruction to our shores that will make September the 11th pale by comparison. To carry out their plans, they must communicate with each other, they must recruit operatives, and they must share information.

"The lives of countless Americans depend on our ability to monitor these communications. Our intelligence professionals must be able to find out who the terrorists are talking to, what they are saying, and what they're planning."

Rejecting a Democratic proposal for another extension to attempt some reconciliation between the House and the Senate, Bush demanded that the House pass the Senate bill immediately.

And he specifically addressed the immunity issue: "In order to be able to discover enemy -- the enemy's plans, we need the cooperation of telecommunication companies. If these companies are subjected to lawsuits that could cost them billions of dollars, they won't participate; they won't help us; they won't help protect America. Liability protection is critical to securing the private sector's cooperation with our intelligence efforts."

But is Bush really saying that without immunity, telecom companies will reject lawful orders in the future? That presented with a warrant or certification stating that certain basic legal requirements have been met, they would refuse to "help protect America"? That's either over-the-top rhetoric -- or he holds the telecom companies in pretty low regard.

Reid (whose procedural calls as Senate leader made the passage of the bill nearly inevitable) responded with the following statement: "Today, President Bush continues his bullying. . . .

"Due to months of White House foot-dragging, the relevant House committees have only just gotten important documents related to whether the Bush Administration followed the law and the Constitution. They need some time to review and analyze them. We must not let this critical issue be resolved by White House bullying.

"Congress is prepared to extend current law -- the Protect America Act -- by any length in order for Congress to complete the in-depth analysis and negotiations necessary for a long-term law broadly supported by the American people. If the President chooses to veto a short-term extension -- as he said he would this morning -- the responsibility for any ensuing intelligence collection gap lies on his shoulders and his alone."

Scott Horton blogs for Harpers: "If things proceed on the course now set by the Bush Administration and its brainless collaborators, and the national surveillance state is achieved in short order, then future generations looking back and tracing the destruction of the grand design of our Constitution may settle on yesterday, February 12, 2008, as the date of the decisive breach. . . .

"On the key vote, the Republicans in the Senate continued to function in lock-step, as they have on almost all significant issues for the last seven years, while the Democrats fragmented. Their vote summed up everything that's wrong with Washington politics today. Fear and hard campaign cash rule the roost, and the Constitution is regarded as a meaningless scrap of parchment, indeed, a nuisance. . . .

"The Constitution was defeated yesterday, and it was defeated by a fateful coalition between brain-numbing fear tactics and money and the resources that money buys."

Why, after years of refusing public comment on particular CIA interrogation methods, have top Bush administration officials suddenly begun pressing a controversial argument that it was legal for the CIA to strap prisoners to a board and pour water over their face to make them believe they were being drowned?

Dan Eggen raises that question in today's Washington Post, and comes up with a possible answer: "The issue promises to play a role in the historic military prosecution of six al-Qaeda detainees for allegedly organizing the Sept. 11, 2001, attacks, in cases described by the Defense Department on Monday."

And knowing that, the administration's strategy of acknowledging waterboarding but arguing that it was legal "appears to be aimed primarily at ensuring that no CIA interrogators face criminal prosecution for using . . . methods that top White House and Justice Department lawyers approved."

That said, as Eggen notes: "The government's defense of the waterboarding episodes, laid out in congressional testimony and administration statements over the past two weeks, relies on a complex legal argument that many scholars and human rights advocates say is at odds with settled law barring conduct that amounts to torture, at any time or for any reason."

Meanwhile, the BBC reports that Supreme Court Justice Antonin Scalia -- known to be a big fan of Jack Bauer, the hero of the Hollywood torture show "24" -- "told the BBC that 'smacking someone in the face' could be justified if there was an imminent threat.

"'You can't come in smugly and with great self satisfaction and say "Oh it's torture, and therefore it's no good",' he said in a rare interview."

The St. Petersburg Times editorial board writes: "Waterboarding is torture and has been clearly viewed as such for more than 100 years. A U.S. major was court-martialed in 1901 and sentenced to 10 years' hard labor for having used waterboarding against a prisoner in the Philippines. We have prosecuted enemy combatants for using it against our troops.

"So when Attorney General Michael Mukasey says he won't open a criminal investigation into the CIA's waterboarding because the Justice Department had approved the technique, he is playing a game. In the Bush administration, all it takes for crimes to get excused is for a willing and complicit Justice Department to pre-approve it. How convenient."

Matthew Lee writes for the Associated Press: "The Bush administration has instructed U.S. diplomats abroad to defend its decision to seek the death penalty for six Guantanamo Bay detainees accused in the Sept. 11 terror attacks by recalling the executions of Nazi war criminals after World War II. . . .

"In it, the department advises American diplomats to refer to Nuremberg if asked by foreign governments or media about the legality of capital punishment in the 9/11 cases. . . .

"The cable makes no link between the scale of the crimes perpetrated by the Nazis, which included the Holocaust that killed some 6 million European Jews and other minorities, and those allegedly committed by the Guantanamo detainees, who are accused of murder and war crimes in connection with 9/11, in which nearly 3,000 people died."

Josh White, Walter Pincus and Julie Tate write in The Washington Post that some of the civilian lawyers representing terrorism suspects held by the military at Guantanamo Bay "say the Defense Department's regulations for their work are so onerous that they will be unable to provide a fair and adequate defense of their clients."

ThinkProgress.org has a clip of Charles Swift, the former U.S. Navy attorney who represented a Guantanamo prisoner in a Supreme Court case, telling CNN: "If we use waterboarded testimony in that trial, to my knowledge . . . the last precedent for using that kind of testimony was the Spanish Inquisition.

The Washington Post editorial board writes: "There is still time for the administration and Congress to fine-tune the commissions. This should be done if for no other reason than to ensure that the outrage felt by the world on Sept. 11 remains focused on those who perpetrated the atrocities -- and not on the country that would punish such murderers. More fundamentally, doing so is essential to preserving the bedrock American values of fairness and justice that al-Qaeda aimed to destroy."

The New York Times editorial board writes: "This is just what we feared would happen as a result of President Bush's decision to go outside the law in dealing with terrorism: men who may well have committed crimes against humanity are being put on trial in a system so flawed that the results will seem unjust."

Carl Hulse writes in the New York Times: "Democratic House leaders plan to force a vote as early as Thursday on holding Joshua B. Bolten, White House chief of staff, and Harriet E. Miers, former White House counsel, in contempt of Congress.

"Senior Congressional officials said the House leadership had essentially decided to go ahead with the vote, which is expected to spark a fight with Republicans over what they see as a politically inspired inquiry.

"The contempt citation, approved in July by the Judiciary Committee on a party-line vote, stems from the refusal of the two to testify before the panel in the investigation into whether several United States attorneys were dismissed for political reasons."

Michael M. Grynbaum writes in the New York Times: "A Bush administration plan to delay foreclosures for some troubled homeowners met a cool reaction on Tuesday from politicians and investors who questioned its ability to stave off what could be a long and painful string of mortgage defaults.

"The plan, called Project Lifeline, was endorsed by six major mortgage lenders and described by administration officials as a much-needed balm for the pained housing market.

"Wall Street analysts, however, said the plan fell short of the broad reforms necessary to help people meet mortgage payments as home values drop and foreclosures rise."

Ruth Simon and Tom McGinty write in the Wall Street Journal (subscription required): "As the Bush administration announced a fresh plan to aid homeowners overburdened by their mortgages, initial figures suggest much-touted earlier efforts have done little to help most troubled borrowers.

"An earlier plan, brokered in December by the Treasury Department, called for the mortgage industry to freeze interest rates or expedite refinancing for potentially hundreds of thousands of subprime borrowers, so long as they were current on their payments. In a companion move, the administration announced a toll-free number for homeowners, but the hotline has provided counseling to just 36,000 borrowers in the past two months, and representatives have suggested loan workouts for fewer than 10,000 of them -- a small fraction of borrowers in need."

The New York Times editorial board writes that "it's unclear why the administration continues to believe that urging the industry to do more is the most effective way to cope with the foreclosure crisis."

Julie Hirschfeld Davis writes for the Associated Press about the economic stimulus plan: "Democrats and Republicans who put aside deep differences to craft the plan and rush it to enactment were to join the president at the White House for an afternoon signing ceremony.

"The package is designed in part to inoculate lawmakers from vote blame should the economy continue to lag as the November elections bear down. . . .

"In the meantime, economists are debating how effective the rebates will be, with critics arguing that debt-burdened consumers will use the money to pay bills rather than spending the checks and spurring growth."

Michael Abramowitz and Hamil R. Harris write in The Washington Post: "President Bush warned yesterday that the United States is at risk of losing sight of past racial suffering, describing recent displays of nooses and jokes about lynching as 'deeply offensive' in a speech to a largely African American audience invited to the White House.

"Responding to news coverage of such episodes since the 'Jena Six' case in Louisiana last fall, Bush said: 'These disturbing reports have resulted in heightened racial tensions in many communities. They have revealed that some Americans do not understand why the sight of a noose causes such a visceral reaction among so many people.'"

James Gerstenzang writes in the Los Angeles Times: "The president's focus on race coincides with the attention being devoted to the role of race in politics, with Sen. Barack Obama (D-Ill.) in contention to be the first African American candidate to receive a major political party's presidential nomination. He is drawing the support of a cross section of voters and is finding a deep well of votes in states with large white populations."

The secretaries of state and defense, Condoleezza Rice and Robert Gates, write in a Washington Post op-ed: "Our troops and diplomats have made untold sacrifices to help put Iraq on the path to self-sufficiency. A crucial phase in this process will unfold in the coming months, when our ambassador in Baghdad, Ryan Crocker, begins negotiating a basic framework for normalized relations with the Iraqi government -- to include what is known as a 'status of forces' agreement. We encourage Congress and the public to support the efforts of our senior diplomats and military officers as they forge ahead with these talks -- which we believe are essential to a successful outcome in Iraq and, by extension, the vital interests and security of the United States. . . .

"Nothing to be negotiated will mandate that we continue combat missions. Nothing will set troop levels. Nothing will commit the United States to join Iraq in a war against another country or provide other such security commitments. And nothing will authorize permanent bases in Iraq (something neither we nor Iraqis want). And consistent with well-established practice regarding such agreements, nothing will involve the U.S. Senate's treaty-ratification authority -- although we will work closely with the appropriate committees of Congress to keep lawmakers informed and to provide complete transparency. Classified briefings have already begun, and we look forward to congressional input."

Left unaddressed, however, is why the initial agreement announced by the White House in November went far beyond what Rice and Gates now describe, including for instance, the United States "providing security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq that violates its sovereignty and integrity of its territories, waters, or airspace."

Did they not mean it then? Or do they not mean it now?

A new Harris Poll is out: "When asked to say who they think was the worst president since World War II, many more people (34%) choose George W. Bush than pick anyone else. . . .

"Fully 58 percent of Democrats and 37 percent of Independents, but only 9 percent of Republicans think George W. Bush the worst recent president."

I'm Live Online today at 1 p.m. ET. Come join the conversation.

Dan Wasserman and John Sherffius on the surveillance state; Tony Auth on aid and comfort for the enemy; Tom Toles on the stimulus package; Ed Stein on the 9/11 president.