Obama supporters against the FISA “compromise”

July 3rd, 2008 · 1 Comment

I’ve been meaning to post a defense of some of Obama’s recent perceived moves to the “center,” but I’ve held back in large part because one of them really bothers me. Before I can write about why I’m not angry or devastated by his positions on Iran, on Israel, on NAFTA, on campaign finance, on federal funding for faith-based programs… all of which I find troubling but not inconsistent with how Obama has presented his worldview… I need to acknowledge that I’m pretty pissed about his stance on the FISA bill.

Mcjoan at Daily Kos has a good post today that draws heavily on an opinion issued yesterday by the Northern District Court of California. The most heated debate about this bill is that it grants the telecom companies who participated in Bush’s illegal wiretapping practices immunity from civil suits, a provision Obama once decried.

In February, Obama issued a statement that began:

I am proud to stand with Senator Dodd, Senator Feingold and a grassroots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty. There is no reason why telephone companies should be given blanket immunity to cover violations of the rights of the American people - we must reaffirm that no one in this country is above the law.

With those amendments defeated, however, Obama has decided that the current “compromise” is acceptible, and he employs Rove-like language to justify it, even while taking a shot at Bush’s abuse of power:

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders

He goes on to say that he is disappointed in the immunity provision and will work with other Senators to remove it, but that the bill as a whole is a productive compromise and necessary for our national security.

There are several problems with this, and while some Obama supporters have accepted his statement, others have not.

While some supporters point out that an Obama administration could still theoretically initiate criminal investigations of the implicated telecoms and of the Bush administration actions, it seems very unlikely that he would do so, in no small part because he has not even dropped the slightest of hints that he might consider it.

While Feingold, Dodd, and others have continued to oppose the bill, Obama has backed away from his opposition, and from his heretofore allies in this cause. Obama’s high-profile support of the opposition would very likely strengthen the willingness of some junior senators to stand up to the current leadership.

Most importantly, the telecom immunity provision is not the only, nor the most odious, offense in the bill. The ACLU has posted a much-linked-to summary of the bill’s more chilling provisions. Some of my favorites:

H.R. 6304 permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing.
H.R. 6304 further trivializes court review by explicitly permitting the government to continue surveillance programs even if the application is denied by the court. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever it gathered in the meantime.
H.R. 6304 ensures the dismissal of all cases pending against the telecommunication companies that facilitated the warrantless wiretapping programs over the last 7 years. The test in the bill is not whether the government certifications were actually legal – only whether they were issued. Because it is public knowledge that they were, all the cases seeking to find out what these companies and the government did with our communications will be killed.
Members of Congress not on Judiciary or Intelligence Committees are NOT guaranteed access to reports from the Attorney General, Director of National Intelligence, and Inspector General.

In short, this bill expands executive power and further diminishes executive accountability and transparency.

Despite some claims that the bill must be passed now because FISA is about to expire, the FISA court is still up and running, and not set to expire. The only “danger” is that the administration (and future administrations) might have to go back to getting (all but rubber-stamp) warrants from the court.

It is all too easy to advocate for the expansion of executive power when you expect to be the next executive wielding that power. Even the best of intentions, though, are mightily compromised by access to too much power and too little oversight. I believe Obama can be a very good president. I also believe, as Atrios has argued, that one of the ways an Obama administration might crash and burn is via access to too much unbridled power:

As I’ve written before, Democrats will regret embracing the expansion of executive power because a President Obama will find his administration undone by an “abuse of power” scandal. All of those powers which were necessary to prevent the instant destruction of the country will instantly become impeachable offenses. If you can’t imagine how such a pivot can take place then you haven’t been paying attention.

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1 response so far ↓

1 “Accountability Now” Money Bomb TODAY // Aug 8, 2008 at 11:09 am

[...] Because I donated $25 to the Obama campaign during the primary, I felt obligated to donate $25 to Accountability Now / Strange Bedfellows, a transpartisan organization formed to resist those portions of the FISA “compromise” and the Patriot Act that eviscerate the Bill of Rights and radically expand executive powers. I remain committed to help electing Obama president but I also remain committed to holding him accountable for his vote on the FISA Amendments Act of 2008, which I’ve written about before. [...]

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