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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