This article first appeared in the St. Louis Beacon: July 11, 2008 - Sen. Claire McCaskill, D-Mo., has been irritating liberals for months by joining in support of the new law that expands governmental authority to conduct foreign intelligence wiretaps. This week, liberal blogs reacted in dismay as the bill passed with McCaskill's yes vote. One, the KC Blue Blog, ran the picture of Sen. McCaskill presiding over the Senate as the bill passed. Accompanying the photo was the headline, "Claire Collapses in Defense of the Constitution."
Sen. McCaskill joined Sen. Christopher S. Bond, R-Mo., the architect of the Foreign Intelligence Surveillance Act Amendments enacted July 9. Sen. Barack Obama, D-Ill., also ended up supporting the bill, leaving Sen. Richard Durbin, D-Ill., as the only opponent among the St. Louis area's senators. The votes illustrate how the White House was able to make inroads among Democrats who previously opposed the president on wiretaps. McCaskill, Obama and Durbin all sharply criticized President George W. Bush's warrantless surveillance program after it was disclosed in 2005.
A McCaskill spokeswoman said the senator was with her family on Friday and unavailable for an interview. In a press statement, McCaskill explained her support this way: "This is by no means a perfect bill, but it includes some stronger privacy protections for American citizens than current law while it gives the intelligence community the tools it needs to fight terrorism."
During her successful race against former Sen. Jim Talent, R-Mo., McCaskill opposed Bush's warrantless wiretapping program and questioned its constitutionally; Talent supported it.
McCaskill began to draw strong criticism from civil libertarians a year ago when she supported the "Protect America Act of 2007," which extended the power of the president to conduct the foreign surveillance program. Show Me Progress wrote about McCaskill's "disappointing" votes on surveillance and troop withdrawals.
Marty Lederman, a legal blogger, ridiculed McCaskill's explanation for her vote for the 2007 bill, in which she said "it's a lot better than a lot of things that have been forced down this Congress' throat right before recesses that trampled on American's liberties." Lederman facetiously commented, "Now there's an inspiring selling point: 'Vote for the FISA Amendment -- It Tramples on Even Fewer Liberties Than the Military Commissions Act!'" (The Military Commissions Act denied Guantanamo detainees habeas corpus rights.)
A New York Times editorial labeled earlier this year McCaskill as one of the "bullyable" Democratic senators subject to White House pressure on FISA.
Obama's evolution on the FISA bill has been more recent. Earlier in the campaign Obama had said he would join a filibuster to stop passage of the bill. Recently, after locking up the Democratic nomination, Obama said he would reluctantly support the bill, promising to work for a better law if he is elected.
Bond hasn't made it easy for Democrats to switch to his bill. Earlier in the spring, he said the White House had gotten more than it could have expected in the bill. Then, in a long statement on the Senate floor this week, he emphasized that many of the "compromises" in the bill were "cosmetic fixes" to allow Democrats to save face.
On Wednesday, both Obama and McCaskill voted for amendments that would delay or possibly deny legal immunity for the phone companies that cooperated with the president's warrantless wiretapping program. Both voted for an amendment by Sen. Arlen Specter, R-Pa., that would have denied immunity unless a federal judge found the president's program to be legal.
Obama and McCaskill split on an amendment by Sen. Christopher S. Dodd, D-Conn., to entirely excise the part of the bill that gave the telecommunications companies retroactive immunity from lawsuits. McCaskill joined Bond in voting not to strike the provision, while Obama joined Durbin in trying to remove the immunity provision.
After all of the attempts to weaken the bill failed, both McCaskill and Obama voted to block a filibuster and to pass the bill.
For votes on amendments and final passage, click here .
The KC Blue Blog said that McCaskill's role of presiding over the Senate at the time of passage added insult to injury. It added: "Senator McCaskill, we have typically defended you when liberals in our party have attacked you for votes you have taken. This vote, is one that you are going to have a hard time explaining to liberals, moderates and civil libertarians that have voted for you. Jim Talent wouldn't have voted different. John Ashcroft wouldn't have voted different."
Durbin has laid out his opposition to the new law in congressional speeches and in letters to constituents in which he says it is possible to protect both security and liberty with a program that has safeguards for civil liberties.
President Bush quickly signed the bill into law on Thursday.The American Civil Liberties Union promptly challenged itwith a lawsuit claiming the law violates the Fourth Amendment's protection against unreasonable searches and seizures.