6.22.2008

FISA bill: Obama's about-face disappoints, in first renounciation of strategy of clear contrasts

It was just last week that Obama delivered an admirably strong response to Republican accusations that he was stuck in a "September 10th mindset," hitting back that he would not be lectured on September 11th by "the same guys who helped to engineer the distraction of the war in Iraq at a time when we could have pinned down the people who actually committed 9/11." This prompted me to remark that Democrats in 2008 seemed perfectly happy to draw clear contrasts on national security issues, in a clear departure from the the 2002 midterms and the 2004 presidential election.

Well, that didn't last long. On Friday, Barack Obama announced that he would support the FISA bill that dramatically extends the state's surveillance powers. Ever since the New York Times revealed Bush's wiretapping program, Republicans have been clamoring that these are essential tools in the fight against terrorists and that anyone who holds a contrary position is weak on terror (starting with the NYT, accused of treason).

In mid-February, Obama missed a vote on a previous version of the FISA bill but issued a statement announcing he stood with those "who are refusing to let President Bush put protections for special interests ahead of our security and our liberty." Something evidently changed over the past four months. Might it be that Obama won the Democratic nomination in the interval, and is now starting his drift rightward to contest the general election?

Given the Democratic Party's record in standing up to George Bush over the past 6 years, this would hardly be a surprise if it weren't for Obama's insistence that he would usher in a new era of American politics, an era in which Democrats would no longer automatically cave in when accused of helping terrorists. After all, it is for similar reasons of political expediency that Hillary Clinton and John Edwards voted in favor of the Iraq resolution in 2002 -- and we know how central a moment that became in Obama's campaign against them. Yet, opposing one of the most controversial programs of the Bush Administration and insisting on the importance of court-issued warrants became too much to ask of the Illinois Senator.

Particularly frustrating is Obama's revisionist attempts to change the terms of the debate. Just as Hillary Clinton argued that the 2002 vote was not about taking the country to war but about prolonging the diplomatic effort, Obama is reducing opposition to Bush's program to criticism that it was illegal. "Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over," Obama wrote in a letter released on Friday.

So was the only problem with Bush's surveillance program that it was illegal? Are we forgetting that the first issue here is the expansion of executive authority and the strengthening of the police state -- policies that are questionable whether or not they are authorized by law? By accepting the FISA bill and by calling it a "compromise," Obama and a depressingly high number of Democrats are essentially saying that the way to address the executive branch's illegal actions is to make those acts legal... and the problem will be resolved!

What will not be resolved, however, is the fact that this bill grants extensive and excessive powers to government and limits civil liberties. Sen. Feingold, one of the bill's main opponents, blasted this latest bill in a statement for "fail[ing] to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power." This deal "is not a compromise; it is a capitulation," Feingold laments, joined by other Democratic lawmakers like Senator Chris Dodd and Rep. Holt.

A second bit of revisionism is Obama's acting as if retroactive immunity for telecommunication companies is the only part of the FISA bill that is controversial and worthy to fight. He promised to fight on the Senate floor to remove the provisions granting immunity to telecommunication companies, though he indicated that he would still vote in favor of the overall package if his efforts fail (as they are likely to). MoveOn is particularly furious and is insisting that Obama keep the promise he made this past October that he would filibuster any bill granting immunity.

But as is obvious from Russ Feingold's statements and the anger of many liberal activists, the reasons to oppose the FISA deal go far beyond the immunity question and into the problem of insufficient judicial oversight and the extension of the surveillance state. Obama's using his renewed opposition to the immunity issue to mask his about-face on the rest of the bill is particularly frustrating given that it is the parts strengthening executive authority that are the bill's most problematic provisions.

Washington Monthly has a strong explanation of the issues with the FISA bill, including the extension of the period the NSA can conduct wiretaps without FISA approval and the fact that they can still be used in court evne if they are struck down, as well as disregard for what has come to be defined as probable cause, as algorithms will now come to define who is suspect and what merits surveillance. Kevin Drum explains that,

We're tapping the phones of anyone who fits a hazy and seldom accurate profile that NSA finds vaguely suspicious, a profile that inevitably includes plenty of calls in which one end is a U.S. citizen. But the new FISA bill doesn't require NSA to get a warrant for any of these individuals or groups, it only requires a FISA judge to approve the broad contours of the profiling software. (...) The oversight on this stuff is inherently weak. (...) For all practical purposes, then, the decision about which U.S. citizens to spy on is being vested in a small group of technicians operating in secret and creating criteria that virtually no one else understands.

And Salon's Glenn Greenwald adds:

It is absolutely false that the only unconstitutional and destructive provision of this "compromise" bill is the telecom amnesty part. It's true that most people working to defeat the Cheney/Rockefeller bill viewed opposition to telecom amnesty as the most politically potent way to defeat the bill, but the bill's expansion of warrantless eavesdropping powers vested in the President, and its evisceration of safeguards against abuses of those powers, is at least as long-lasting and destructive as the telecom amnesty provisions. The bill legalizes many of the warrantless eavesdropping activities George Bush secretly and illegally ordered in 2001. (...)

This bill doesn't legalize every part of Bush's illegal warrantless eavesdropping program but it takes a large step beyond FISA towards what Bush did. There was absolutely no reason to destroy the FISA framework, which is already an extraordinarily pro-Executive instrument that vests vast eavesdropping powers in the President, in order to empower the President to spy on large parts of our international communications with no warrants at all. This was all done by invoking the scary spectre of Terrorism -- "you must give up your privacy and constitutional rights to us if you want us to keep you safe" -- and it is Obama's willingness to embrace that rancid framework, the defining mindset of the Bush years, that is most deserving of intense criticism here. (...)

He's supporting a bill that is a full-scale assault on our Constitution and an endorsement of the premise that our laws can be broken by the political and corporate elite whenever the scary specter of The Terrorists can be invoked to justify it.

And Yale Law School professor Jack Balkin adds:

Most Americans don't realize that the FISA compromise comes in two parts. The first part greatly alters FISA by expanding the executive's ability to wiretap and engage in much broader searches of communications than were permissible under the law before. (...) People aren't paying as much attention to this part of the bill. But they should, because it will define the law of surveillance going forward. It is where your civil liberties will be defined for the next decade.(...)

So, let's sum up: Congress gives the President new powers that Obama can use. Great. (This is change we can believe in). Obama doesn't have to expend any political capital to get these new powers. Also great. Finally, Obama can score points with his base by criticizing the retroactive immunity provisions, which is less important to him going forward than the new powers. Just dandy.

Sure, Obama's move is shrewd and designed to prevent the GOP from using FISA as an issue against him. Sure, most other Democrats would have done the same and are doing the same, and Hillary Clinton was moving rightward on national security as early as late September, when she was shifting to general-election mode and voted for Kyl-Lieberman. But that doesn't obscure the fact that (1) the FISA bill is a major issue and a dramatic extension of executive authority and the surveillance state and (2) those who are against its provisions have to speak up against Obama's decision and those of other Democrats (and there will be a lot) who support the bill.

It makes no sense to hold criticism on a bill of this importance, on an issue on which Democrats have been fighting for years now. It also makes little sense to silence criticism to win this election. For one, since when have liberals criticizing a Democratic nominee hurt that candidate? If anything, Democratic candidates have purposefully sought such criticism. Unfortunately, Obama changing his mind has prompted many Democrats to conveniently give up a difficult fight. As Greenwald points out:

People who spent the week railing against Steny Hoyer as an evil, craven enabler of the Bush administration -- or who spent the last several months identically railing against Jay Rockefeller -- suddenly changed their minds completely when Barack Obama announced that he would do the same thing as they did. What had been a vicious assault on our Constitution, and corrupt complicity to conceal Bush lawbreaking, magically and instantaneously transformed into a perfectly understandable position, even a shrewd and commendable decision... Numerous individuals stepped forward to assure us that there was only one small bad part of this bill -- the part which immunizes lawbreaking telecoms -- and since Obama says that he opposes that part, there is no basis for criticizing him for what he did.

This bill's acceptance by many in the Democratic Party -- including now Obama -- is nothing but the party's continued willingness to be boxed in into Republican positions out of fear of being portrayed as weak on terror. This is exactly what Obama was supposedly going to rebel against last week, and exactly what we are back to today. Maybe this was necessary for Obama to avoid accusations that he was too soft in his commitment to securing America, but has that not gotten the country into enough trouble from the Patriot Act to the Iraq War and now to wiretapping and surveillance laws? As Hunter points out over on Kos, it is the fact that enough Democrats are supporting this bill to make it a "compromise" that is a true sign of weakness:

FISA was not expiring. FISA was not falling into a legislative black hole. It continued to exist, as the exclusive means for electronic surveillance of the American people, and all it required was a warrant, and all the warrant required was probable cause. That's it. That's what this entire, months-long parade of panic, bluster and torn hair has been about, that it was just too damn difficult for the administration to be asked to show two sentences of probable cause to a judge in a secret hearing before collecting whatever electronic information about you (...)

And if you object to it, then even Barack Obama will hold the threat of imminent Terror over your head as justification for why we should ignore past violations of Constitutional rights and declare a massive, flag-waving, star-spangled do over that simply declares there's no more problem.

As for electoral consequences, none of this is likely to hurt Obama, of course. The enthusiasm of liberal activists and groups like MoveOn will not fade based on this, especially since most Democratic presidential candidates behave this way once they have wrapped up the nomination (see John Kerry and the Missouri anti-gay amendment). But it does call into question what sort of campaign we will see over the next few months: Will Obama keep firm on his determination to draw clear contrasts with the Republican Party? Or will he minimize differences on issues relating to national security to concentrate on the Iraq War?

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10 Comments:

  • You're criticisms show that either you are very poorly informed about this issue, or you simply want to cast it in the most damning perspective toward Obama.

    Obama was never against the FISA bill update, but he was always against immunity for the telecoms, which is something that other Democrats have said that they'd stand up for as well. The FISA bill for the most part is a much needed update for legislation that was drafted in the 70's that George Bush had decided was too quaint to even acknowledge. These laws needed to be updated to clearly define what is and is not allowed under the law in the new millennium.

    The problem with the FISA bill as it currently stands is it gives blanket immunity to telecoms (and members of the current administration) for having ignored the law in the runup to Iraq at Bush's behest. There are many problems with this, and since you clearly haven't done any research before posting, I'd encourage you to do so to learn more.

    The real failure here was the Democratic house leadership, specifically Hoyer, who brokered the "compromise" allowing immunity and allowed the vote. There was no way that this should have happened, but it did. Obama has spoken out against the immunity in the past, and has promised to help filibuster any FISA bill with that in it. It's not a "mask" as you put it. It's his stated position, and again, I can only assume that you just didn't do the research before writing this.

    His statement which supported the FISA bill left open the option of working to strip out the immunity clauses. THIS is the issue that most of his supporters want to hold him to. Whether he'll have the votes or not is up in the air, but you have clearly mischaracterized the dynamics of the FISA situation as it currently stands.

    It's up to Bush and his enablers who have really been pushing this to decide whether they want to expand Federal authority to in what is clearly an election year that's a referendum on Republicans. They might regret this moment later after Obama's AG gets his hands on them.

    By Anonymous Anonymous, At 22 June, 2008 19:17  

  • As you say, it's going to get even worse in the next 5 months. Obama also cut an ad for John Barrow (D-GA) last week and he will continue to go to the center.

    By Anonymous Anonymous, At 22 June, 2008 19:23  

  • Taniel, I disagree wholeheartedly that Obama is on a rightward drift to contest the general election. After all, most Democrats are afraid of America's security situation in the post-9/11 world that if Obama showed any softening on national security matters, Americans will feel less comfortable giving him the chance to lead the nation and strengthen its security and repair its tarnished global image. Democrats have long been painted as weak on national security, so whie it may sound like political expediency for Obama to support the FISA bill, he has to do so in order to demonstrate his toughness on security matters while also asserting the need for a new direction in the course of the war on terrorism and in Iraq.

    By Anonymous Anonymous, At 22 June, 2008 19:53  

  • Anon,

    You write, "Democrats have long been painted as weak on national security, so whie it may sound like political expediency for Obama to support the FISA bill, he has to do so in order to demonstrate his toughness on security matters while also asserting the need for a new direction in the course of the war on terrorism and in Iraq."

    Of course, I entirely agree that is what Obama is trying to achieve. My point is just that a week ago Obama insisted that Democrats no longer had to demonstrate their toughness on national security and that they would no longer play into the game of having to continually appear tough -- and that he went right back to playing that game within a week.

    Most other Democrats would have done the same, and Hillary Clinton was doing that as early as late September when she thought she would be the nominee and voted for Kyl-Lieberman. But that doesn't obscure the fact that (1) the FISA bill is a major extension of executive authority and the surveillance state and (2) those who are against its provisions have to speak up against Obama's decision and those of other Democrats (and there will be a lot) who vote for it.

    By Blogger Taniel, At 22 June, 2008 19:58  

  • Smith said...
    Well Taniel, all I can say is politicians are politicians. No surprise Obama changed position. I'd believe, however, that there may be underlying and complex reasons behind this that require more than just basis analysis. Obama may or may not wish to use these new powers should the law take effect and should he be elected president.
    I'd think Obama is wary of being bombarded by the Republicans for being too weak and too compromising on security issues should he oppose the legislation, because that is how the GOP successfully won the election of 2004 even though this election seems to favor the Democrats largely because of he Iraq war and the unpopularity of a sitting president.
    I am sure that once Obama wins the presidency (and he has to do what it takes to win in the face of GOP ruthless assault), he will no onger have to fear the GOP and do what he beleives will bring a different kind of politics to America. After all, McCain would be much worse as someone who frequently stumbles than does Barack.

    By Anonymous Anonymous, At 22 June, 2008 20:20  

  • As a man who has taught Constitutional law (not to mention someone who has bucked popular opinion on issues like the gas tax and public financing), I think Obama's position is a bit more thought out than you seem to believe. The truth is this law had to be updated, it was the terms of that update that were in question.

    By Anonymous Anonymous, At 23 June, 2008 01:41  

  • The heartburn of buyer's remorse is just beginning. Obama will be worse than Bush. He's never backed down from a chance to seize more authority. Just wait until he gets his hands on the WH. If you thought Bush's expansionist agenda was bad, you're in for a real eye-opener. That "100 years" in Iraq will seem tame.

    By Anonymous Anonymous, At 23 June, 2008 07:32  

  • Chris,
    Sure, I am arguing that the terms of this update grant too much surveillance powers to the state. And I never implied Obama's position isn't thought out, as I am not suggesting that any position I disagree with isn't thought out.

    As for the last anon, I am not sure what you are referring to. McCain is also obviously in favor of FISA's extension, so none of this criticism is meant to inform a choice between the two presidential candidates.

    By Blogger Taniel, At 23 June, 2008 11:32  

  • I'll just add that if you're going to revise and extend one of your posts, don't just do it after the comments start rolling in. It's more intellectually honest to make any additional information and clarifications to a post as an update explicitly noting what you may have changed or just wanted to make more clear.

    Simply rewriting a post and adding additional links and quotes with no notice or notation *AT BEST* looks sloppy and gives the appearance of the lack of editorial and ethical standards.

    Just saying.

    By Anonymous Anonymous, At 23 June, 2008 14:09  

  • By Blogger oakleyses, At 15 November, 2015 23:42  

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