From Salon.com by Glenn Greenwald
Tuesday July 15, 2008 08:16 EDT:
"The motivation for blocking investigations into Bush lawbreaking
Harper's Scott Horton yesterday interviewed Jane Mayer about her new book, The Dark Side. The first question he asked was about the Bush administration's fear that they would be criminally prosecuted for implementing what the International Red Cross had categorically described as "torture."
Mayer responded "that inside the White House there [had] been growing fear of criminal prosecution, particularly after the Supreme Court ruled in the Hamdan case that the Geneva Conventions applied to the treatment of the detainees," and that it was this fear that led the White House to demand (and, of course, receive) immunity for past interrogation crimes as part of the Military Commissions Act of 2006. But Mayer noted one important political impediment to holding Bush officials accountable for their illegal torture program:
An additional complicating factor is that key members of Congress sanctioned this program, so many of those who might ordinarily be counted on to lead the charge are themselves compromised.
As we witness not just Republicans, but also Democrats in Congress, acting repeatedly to immunize executive branch lawbreaking and to obstruct investigations, it's vital to keep that fact in mind. With regard to illegal Bush programs of torture and eavesdropping, key Congressional Democrats were contemporaneously briefed on what the administration was doing (albeit, in fairness, often in unspecific ways). The fact that they did nothing to stop that illegality, and often explicitly approved of it, obviously incentivizes them to block any investigations or judicial proceedings into those illegal programs.
In December of last year, The Washington Post revealed:
Four members of Congress met in secret for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody. For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi (D-Calif.), was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk.
Among the techniques described, said two officials present, was waterboarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill. But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two U.S. officials said.
The article noted that other Democratic members who received briefings on the CIA's interrogation program included Jay Rockefeller and Jane Harman. While Harman sent a letter to the CIA asking questions about the legality of the program, none ever took any steps to stop or even restrict the interrogation program in any way.
Identically, numerous key Democrats in Congress -- including Rockefeller and Harman -- were told that Bush had ordered the NSA to spy on American without warrants and outside of FISA. None of them did anything to stop it. In fact, while Rockefeller wrote a sad, hostage-like, handwritten letter to Dick Cheney in 2003 (which he sent to nobody else) -- assuring Cheney that he would keep the letter locked away "to ensure that I have a record of this communication" -- Harman was a vocal supporter of the illegal NSA program. Here's what she told Time in January, 2006 in the wake of the NYT article revealing the NSA program:
Some key Democrats even defend it. Says California's Jane Harman, ranking Democrat on the House Intelligence Committee: "I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities."
Harman then went on Fox News and pronounced that the NSA program was "legal and necessary" and proudly said: "I support the program." Even worse, in February, 2006, Harman went on "Meet the Press" and strongly suggested that the New York Times should be criminally prosecuted for having reported on the illegal program. And indeed, in 2004, Harman demanded that the NYT's Eric Lichtblau not write about the NSA program. As Lichtblau wrote in his recent book about a 2004 conversation with Harman:
"You should not be talking about that here," she scolded me in a whisper. "They don't even know about that," she said, gesturing to her aides, who were now looking on at the conversation with obvious befuddlement. "The Times did the right thing by not publishing that story," she continued. I wanted to understand her position. What intelligence capabilities would be lost by informing the public about something the terrorists already knew -- namely, that the government was listening to them? I asked her. Harman wouldn’t bite. "This is a valuable program, and it would be compromised,' she said. I tried to get into some of the details of the program and get a better understanding of why the administration asserted that it couldn't be operated within the confines of the courts. Harman wouldn't go there either. "This is a valuable program," she repeated.
In light of this sordid history of active complicity, is it really any wonder that these leading Democrats are desperate to quash any investigations or judicial adjudications of Bush administration actions that they knew about and did nothing to stop, in some cases even actively supporting?
Yesterday, I was on Warren Olney's To the Point discussing the FISA controversy. The guest interviewed immediately before me was Jane Harman (and before her was Lichtblau). Harman was vigorously spouting every false talking point to defend her vote in favor of telecom immunity and the new FISA law, including the painfully absurd claim that the new FISA law actually "makes the law stronger than the original law. It's a better law." She kept saying things like this to justify her support for terminating the lawsuits arising out of the illegal NSA program:
OLNEY: But back to the question, though, of the phone companies. Why was it that one company, Qwest, seemed to think that there were serious questions to be raised about this and the others didn't? Can you tell us that?
HARMAN: Well, I respect what Qwest did. Qwest said that the strict letter of FISA isn't being followed, as I understand it. That was some very careful lawyering.
The other telecoms that complied with requests believed -- so they say -- that they were complying with valid requests from the Government. And remember that when this happened, it was shortly after 9/11 and so forth --
OLNEY: Yeah, but if they didn't, and privacy was violated, shouldn't they be held to account?
HARMAN: I think that a process should be followed. I think the people who should be held to account are the people who made the decision not to follow FISA, and those were not the telecom executives.
Actually, "the people who made the decision not to follow FISA" most certainly did include the telecom executives -- as well as people like Jane Harman herself who, in her capacity as ranking member of the Intelligence Committee, was told about the illegal spying program and supported it as "legal and necessary," and even tried to bully journalists into refraining from exposing it.
Exactly the same thing happened with Jay Rockefeller and Bush's torture program. It is absolutely the case that, as Mayer pointed out yesterday and as I wrote about at the time, Bush officials faced serious danger of criminal liability in the wake of the 2006 Hamdan ruling that the Geneva Conventions applied to Al Qaeda and Taliban detainees. But the Military Commissions Act, passed several months after the Hamdan ruling, took care of that problem by immunizing the lawbreakers. Jay Rockefeller was right there supporting that retroactive immunity, too -- thereby helping to block investigations and prosecutions for illegal torture programs about which Rockefeller knew and in which he was complicit.
This is exactly the dynamic which Law Professor, Fourth Amendment expert, and Simple-Minded, Confused Leftist Hysteric Jonathan Turley was describing on MSNBC on June 19:
I mean, the Democrats never really were engaged in this. In fact, they repeatedly tried to cave in to the White House, only to be stopped by civil libertarians and bloggers. And each time they would put it on the shelf, wait a few months, they did this before, reintroduced it with Jay Rockefeller's support, and then there was another great, you know, dustup and they pulled it back. . . .
I think they're simply waiting to see if the public's interest will wane and we'll see that tomorrow, because this bill has, quite literally, no public value for citizens or civil liberties. It is reverse engineering, though the type of thing that the Bush administration is famous for, and now the Democrats are doing -- that is to change the law to conform to past conduct.
It's what any criminal would love to do. You rob a bank, go to the legislature, and change the law to say that robbing banks is lawful. . . .
This is a very frightening bill. What people have to understand is that FISA itself is controversial. This court issued tens of thousands of warrants granted applications for surveillance without turning down any. Only recently did they turn down two. . . . What you're seeing in this bill is an evisceration of the Fourth Amendment of the Constitution. It is something that allows the president and the government to go in to law-abiding homes on their word alone, their suspicion alone, and to engage in warrantless surveillance. That's what the framers that drafted the Fourth Amendment wanted to prevent. . . .
Well, there's no question in my mind that there is an obvious level of collusion here. We now know that Democratic leadership knew about the illegal surveillance program almost from its inception. Even when they were campaigning about fighting for civil liberties, they were aware of an unlawful surveillance program as well as a torture program. And ever since that came out, the Democrats have been silently trying to kill any effort to hold anyone accountable because that list could very well include some of their own members.
And, I'm afraid this is Washington politics at the worst. And, so, I think that what you're seeing with this bill is not just caving in to a very powerful lobby, but also caving in to sort of the worst motivations on Capitol Hill since 9/11. You know, the administration was very adept at bringing in Democrats at a time when they knew they couldn't refuse, to make them buy in to this program, and now that investment is bearing fruit.
So, of course key Congressional Democrats who were made aware of these illegal torture and surveillance programs are going to protect the Bush administration and other lawbreakers. If you were Jay Rockfeller or Nancy Pelosi, would you want there to be investigations and prosecutions for torture programs that, to one degree or another, you knew about? If you were Jane Harman, wouldn't you be extremely eager to put a stop to judicial proceedings that were likely to result in a finding that surveillance programs that you knew about, approved of, and helped to conceal were illegal and unconstitutional?
When President Bush and Vice President Cheney celebrated the signing of the new FISA bill at the White House along with Jay Rockefeller, Steny Hoyer and Jane Harman (see the wonderful photos here), they weren't just celebrating with the political officials who helped protect them from consequences for illegal acts. They were celebrating with those who were participants in those acts, and who were therefore just as eager for immunity and an end to judicial proceedings as Bush officials themselves.
Showing posts with label Obama on FISA. Show all posts
Showing posts with label Obama on FISA. Show all posts
Tuesday, July 15, 2008
Thursday, July 10, 2008
Obama veers to the right, but does he need to take the Constitution with him?
From Slate.com By Doug Kendall and Dahlia Lithwick on July 9, 2008:
"Barack Obama's rightward drift in recent weeks has hardly gone unnoticed or unrewarded. What's most fascinating about his efforts to appeal to the American center is the extent to which Obama, as a constitutional law professor and Harvard Law Review president, has repeatedly chosen the Bill of Rights as his vehicle for doing so. It's not an overstatement to say that in the past month Obama has tugged the First, Second, Fourth, and Eighth amendments to the center. Not a day goes by, it seems, without a constitutional wink to the right on guns (he thinks there is an individual right to own one), the wall of separation between church and state (he thinks it can be lowered), the Fourth Amendment prohibition on warrantless wiretapping (he's changed his position on FISA), and on the death penalty for noncapital child rape cases (he thinks it's constitutional) as well as a possible shift this week on the right to abortion (which could further limit the reach of Roe v. Wade). Such accommodations are not all unexpected. Some of these positions (like his stance on capital punishment) have long been a part of his unorthodox constitutional thinking. Others (such as the hair-splitting on guns) are politically expedient. Nor are such nuanced views unwelcome. Obama is well aware that the ways in which liberals talk about the Constitution are sometimes mired in 1960s mushiness and feel-goodery that no longer resonates with the American public.
But Obama appears to be compromising on the wrong constitutional issues while backing away from fights on the right ones. A liberal re-examination of constitutional philosophy need not involve a capitulation to conservative values. Obama can certainly move to the right on gun-control policy or support a limited death penalty if politics demand that he do so. But he should not, in so doing, shift to the right on the Constitution itself.
Consider the fact that Obama spent the final days of the Supreme Court term celebrating conservative constitutional outcomes rather than calling out dubious conservative methodology. Who was better situated to chide the court's conservatives for what sure seems to be an activist ruling that saved Exxon $2 billion in damages stemming from the Valdez oil spill? Just as Obama was reiterating his support for guns (certainly a tenable liberal position these days), he was missing an opportunity to turn the conversation to another 5-4 case decided that day—in which the court struck down the so-called millionaire's amendment—an important part of the McCain-Feingold campaign-finance law. That case was a constitutional minefield for John McCain: His dream judges ruled an important portion of his most significant legislative accomplishment unconstitutional. But all we heard were crickets chirping in Chicago.
Obama also needed to do far more than he did to highlight McCain's shocking assertion that the court's ruling in the Guantanamo detainees' case was one of the "worst in the nation's history." As George Will effectively chronicled, that was a patently ridiculous statement that revealed a deep misunderstanding of both the law and the courts. Had Obama directly addressed McCain and—by extension—McCain's model judges on that issue, it would have gone a long way toward assuring Americans that in his administration the Bill of Rights will not be a luxury reserved only for the sunny days.
But perhaps the most important fight over the Constitution facing Obama is not about the Constitution itself, but over the composition of the Supreme Court. McCain has signaled that he plans to campaign hard on the issue—taking numerous opportunities to excoriate "judicial activists" and promise more jurists like Chief Justice John Roberts and Samuel Alito. McCain pledges that he wants to appoint only judges who would "strictly interpret the Constitution of the United States" (whatever that means). And Obama should welcome this debate; it's one he should win hands down, but he won't be able to capitalize on his strengths unless he can change the way progressive candidates talk about judging and the Supreme Court.
Obama's scattered statements so far on his philosophy for appointing Supreme Court justices instantly reveal the problem. In response to one of McCain's stemwinders on liberal activist judges, Obama started with the boilerplate argument that he will nominate judges who are "competent and capable" and who "interpret the law." So far, so good. He then shifted to "those 5 percent of cases or 1 percent of cases where the law isn't clear." In those cases, Obama asserted, judges must rely on "his or her own perspectives, his ethics, his or her moral bearings," and thus he wants judges who are "sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being—from being dealt with sometimes unfairly, that the courts become a refuge."
Remarks such as these make Obama sound like the careful law professor he's been in the past, patiently explaining to his students why it is inevitable in some cases that judges will rule based on their gut leanings. But this is precisely the wrong way to talk to Americans about judging, and it's guaranteed to turn Obama's advantage into a disadvantage. Inevitable or not, Americans just don't like it when judges rule based on their personal political preferences rather than being guided by the Constitution and the law. A recent Rasmussen poll tested, side-by-side, the McCain and Obama messages about the court. The results: 69 percent of Americans agreed with McCain's message; only 41 percent agreed with Obama's. Obama will lose the war over the Constitution if he keeps pushing, as he's done, for judges with "empathy." Voters see that as code for "latte-sipping, out-of-touch, smarty-pants elitism."
Obama doesn't have to stumble here. Nor should he maintain the curious silence that leaves his supporters wondering about his constitutional values. A growing number of Americans believe the Roberts Court is too conservative. Polls indicate that the public likes progressive judicial results: The public responds favorably to questions asking whether judges should strongly protect civil rights and civil liberties, rule for the powerless over the powerful, and ensure broad access to justice. Put simply, Americans want to live in Justice Stevens' America, not in Clarence Thomas'.
If McCain genuinely thinks it's smart politics to run against the Warren Court in 2008, Obama simply needs to run against the Roberts Court. He must promise to nominate Supreme Court justices who will protect civil liberties, civil rights, and ensure equal access to courts and justice. He needs to talk and talk about these issues not because these are tender, liberal values he wants his judges to share, but because they are values enshrined in the Constitution, values that have been corroded and neglected in recent years.
When Obama talks about nominating justices who will protect the powerless as much as the powerful, he shouldn't just cite pregnant teenage mothers but instead quote the preamble, which lists establishing justice as a pre-eminent goal of the Constitution, and the words "Equal Justice for All" enshrined in marble over the Supreme Court's entrance. When he talks about courts protecting civil rights, civil liberties, and equal protection, he should explain that we fought a Civil War over these principles and we amended the Constitution to enshrine them in our founding document. In recent weeks, it's become easy to forget that Obama is campaigning as a visionary. He needs to carry this over into how he talks about the Constitution and the Supreme Court rather than falling back into careful, hyper-technical law professor mode.
By rooting the results he seeks from the judiciary in the words of the Constitution—by marrying method to results, rather than divorcing these concepts—Obama can mobilize progressives and also reach beyond his base in speaking about what's at stake at the Supreme Court. By meandering to the right on some of the most important provisions in the Bill of Rights while mumbling about appointing judges who rule based on their "own perspectives," he risks alienating both groups and weakening the Constitution right along with his political prospects.
"
"Barack Obama's rightward drift in recent weeks has hardly gone unnoticed or unrewarded. What's most fascinating about his efforts to appeal to the American center is the extent to which Obama, as a constitutional law professor and Harvard Law Review president, has repeatedly chosen the Bill of Rights as his vehicle for doing so. It's not an overstatement to say that in the past month Obama has tugged the First, Second, Fourth, and Eighth amendments to the center. Not a day goes by, it seems, without a constitutional wink to the right on guns (he thinks there is an individual right to own one), the wall of separation between church and state (he thinks it can be lowered), the Fourth Amendment prohibition on warrantless wiretapping (he's changed his position on FISA), and on the death penalty for noncapital child rape cases (he thinks it's constitutional) as well as a possible shift this week on the right to abortion (which could further limit the reach of Roe v. Wade). Such accommodations are not all unexpected. Some of these positions (like his stance on capital punishment) have long been a part of his unorthodox constitutional thinking. Others (such as the hair-splitting on guns) are politically expedient. Nor are such nuanced views unwelcome. Obama is well aware that the ways in which liberals talk about the Constitution are sometimes mired in 1960s mushiness and feel-goodery that no longer resonates with the American public.
But Obama appears to be compromising on the wrong constitutional issues while backing away from fights on the right ones. A liberal re-examination of constitutional philosophy need not involve a capitulation to conservative values. Obama can certainly move to the right on gun-control policy or support a limited death penalty if politics demand that he do so. But he should not, in so doing, shift to the right on the Constitution itself.
Consider the fact that Obama spent the final days of the Supreme Court term celebrating conservative constitutional outcomes rather than calling out dubious conservative methodology. Who was better situated to chide the court's conservatives for what sure seems to be an activist ruling that saved Exxon $2 billion in damages stemming from the Valdez oil spill? Just as Obama was reiterating his support for guns (certainly a tenable liberal position these days), he was missing an opportunity to turn the conversation to another 5-4 case decided that day—in which the court struck down the so-called millionaire's amendment—an important part of the McCain-Feingold campaign-finance law. That case was a constitutional minefield for John McCain: His dream judges ruled an important portion of his most significant legislative accomplishment unconstitutional. But all we heard were crickets chirping in Chicago.
Obama also needed to do far more than he did to highlight McCain's shocking assertion that the court's ruling in the Guantanamo detainees' case was one of the "worst in the nation's history." As George Will effectively chronicled, that was a patently ridiculous statement that revealed a deep misunderstanding of both the law and the courts. Had Obama directly addressed McCain and—by extension—McCain's model judges on that issue, it would have gone a long way toward assuring Americans that in his administration the Bill of Rights will not be a luxury reserved only for the sunny days.
But perhaps the most important fight over the Constitution facing Obama is not about the Constitution itself, but over the composition of the Supreme Court. McCain has signaled that he plans to campaign hard on the issue—taking numerous opportunities to excoriate "judicial activists" and promise more jurists like Chief Justice John Roberts and Samuel Alito. McCain pledges that he wants to appoint only judges who would "strictly interpret the Constitution of the United States" (whatever that means). And Obama should welcome this debate; it's one he should win hands down, but he won't be able to capitalize on his strengths unless he can change the way progressive candidates talk about judging and the Supreme Court.
Obama's scattered statements so far on his philosophy for appointing Supreme Court justices instantly reveal the problem. In response to one of McCain's stemwinders on liberal activist judges, Obama started with the boilerplate argument that he will nominate judges who are "competent and capable" and who "interpret the law." So far, so good. He then shifted to "those 5 percent of cases or 1 percent of cases where the law isn't clear." In those cases, Obama asserted, judges must rely on "his or her own perspectives, his ethics, his or her moral bearings," and thus he wants judges who are "sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power, and, as a consequence, can't protect themselves from being—from being dealt with sometimes unfairly, that the courts become a refuge."
Remarks such as these make Obama sound like the careful law professor he's been in the past, patiently explaining to his students why it is inevitable in some cases that judges will rule based on their gut leanings. But this is precisely the wrong way to talk to Americans about judging, and it's guaranteed to turn Obama's advantage into a disadvantage. Inevitable or not, Americans just don't like it when judges rule based on their personal political preferences rather than being guided by the Constitution and the law. A recent Rasmussen poll tested, side-by-side, the McCain and Obama messages about the court. The results: 69 percent of Americans agreed with McCain's message; only 41 percent agreed with Obama's. Obama will lose the war over the Constitution if he keeps pushing, as he's done, for judges with "empathy." Voters see that as code for "latte-sipping, out-of-touch, smarty-pants elitism."
Obama doesn't have to stumble here. Nor should he maintain the curious silence that leaves his supporters wondering about his constitutional values. A growing number of Americans believe the Roberts Court is too conservative. Polls indicate that the public likes progressive judicial results: The public responds favorably to questions asking whether judges should strongly protect civil rights and civil liberties, rule for the powerless over the powerful, and ensure broad access to justice. Put simply, Americans want to live in Justice Stevens' America, not in Clarence Thomas'.
If McCain genuinely thinks it's smart politics to run against the Warren Court in 2008, Obama simply needs to run against the Roberts Court. He must promise to nominate Supreme Court justices who will protect civil liberties, civil rights, and ensure equal access to courts and justice. He needs to talk and talk about these issues not because these are tender, liberal values he wants his judges to share, but because they are values enshrined in the Constitution, values that have been corroded and neglected in recent years.
When Obama talks about nominating justices who will protect the powerless as much as the powerful, he shouldn't just cite pregnant teenage mothers but instead quote the preamble, which lists establishing justice as a pre-eminent goal of the Constitution, and the words "Equal Justice for All" enshrined in marble over the Supreme Court's entrance. When he talks about courts protecting civil rights, civil liberties, and equal protection, he should explain that we fought a Civil War over these principles and we amended the Constitution to enshrine them in our founding document. In recent weeks, it's become easy to forget that Obama is campaigning as a visionary. He needs to carry this over into how he talks about the Constitution and the Supreme Court rather than falling back into careful, hyper-technical law professor mode.
By rooting the results he seeks from the judiciary in the words of the Constitution—by marrying method to results, rather than divorcing these concepts—Obama can mobilize progressives and also reach beyond his base in speaking about what's at stake at the Supreme Court. By meandering to the right on some of the most important provisions in the Bill of Rights while mumbling about appointing judges who rule based on their "own perspectives," he risks alienating both groups and weakening the Constitution right along with his political prospects.
"
Obama Votes to Silence Debate and Pass FISA
From The Nation on July 10, 2008 by John Nichols:
"Arizona Senator John McCain did not bother to show up for Wednesday's Senate votes on whether to amend the Foreign Intelligence Surveillance Act to absolve George Bush of responsibility for initiating an illegal warrantless wiretapping program and to provide retroactive immunity to the telecommunications corporations that violated the privacy of their customers in order to collaborate with a lawless president.
But that's O.K., Illinois Senator Barack Obama cast the votes that McCain would have.
In addition to joining the majority in a 69-28 Senate vote to approve legislation that the American Civil Liberties Union describes as "a Constitutional nightmare," Obama backed a key move to silence debate on the FISA bill.
During a day of decisions on amendments, cloture and formal approval of the FISA rewrite, Obama cast several votes in favor of failed amendments to limit certain forms of retroactive immunity for the telecommunications corporations. But, in the essential votes on whether to advance and pass the unamended bill, the senator from Illinois broke the majority of his Democratic colleagues -- including New York Senator Hillary Clinton -- as they worked to keep the debate open and block final passage.
In the case of the cloture vote, the presumptive Democratic nominee for president sided with Republicans who argued that the essential Constitutional questions raised by the White House-backed FISA legislation did not merit extended or thoughtful debate.
Seventy-two senators backed the move to end the debate, while 26 sought to keep it going. Two senators – McCain and ailing Massachusetts Democrat Edward Kennedy – missed Wednesday's votes.
Those 26 "no" votes on cloture were cast by Vermont Independent Bernie Sanders and 25 Democrats, including Majority Leader Harry Reid, D-Nevada, Assistant Majority Leader Dick Durbin, Obama's Democratic colleague from Illinois, and Clinton, Obama's primary competitor for the Democratic presidential nomination.
Leading the fight to keep the debate about the FISA rewrite open were Connecticut Democrat Chris Dodd and Wisconsin Democrat Russ Feingold, the two senators Obama promised earlier their year to work with in an effort to block this assault on the Constitution and corporate responsibility.
Said Feingold, "I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure."
Unfortunately, while Obama once promised to work with Feingold, he wasn't listening on Wednesday when the Wisconsin senator explained to his colleagues that granting retroactive immunity to the telecommunications corporations would effectively block the ability of Congress and the courts to address not just massive corporate wrongdoing but attacks on the privacy rights of Americans.
"If Congress short-circuits these lawsuits, we will have lost a prime opportunity to finally achieve accountability for these years of law-breaking," said Feingold, who flatly rejected Obama's argument that, while unappealing in some aspects, the FISA rewrite was somehow acceptable as a whole. "That's why the administration has been fighting so hard for this immunity. It knows that the cases that have been brought directly against the government face much more difficult procedural barriers, and are unlikely to result in rulings on the merits."
Russ Feingold was speaking the truth about a moment in which the ACLU said the Senate was on the verge of passing "an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance."
But Barack Obama did not want to hear it."
"Arizona Senator John McCain did not bother to show up for Wednesday's Senate votes on whether to amend the Foreign Intelligence Surveillance Act to absolve George Bush of responsibility for initiating an illegal warrantless wiretapping program and to provide retroactive immunity to the telecommunications corporations that violated the privacy of their customers in order to collaborate with a lawless president.
But that's O.K., Illinois Senator Barack Obama cast the votes that McCain would have.
In addition to joining the majority in a 69-28 Senate vote to approve legislation that the American Civil Liberties Union describes as "a Constitutional nightmare," Obama backed a key move to silence debate on the FISA bill.
During a day of decisions on amendments, cloture and formal approval of the FISA rewrite, Obama cast several votes in favor of failed amendments to limit certain forms of retroactive immunity for the telecommunications corporations. But, in the essential votes on whether to advance and pass the unamended bill, the senator from Illinois broke the majority of his Democratic colleagues -- including New York Senator Hillary Clinton -- as they worked to keep the debate open and block final passage.
In the case of the cloture vote, the presumptive Democratic nominee for president sided with Republicans who argued that the essential Constitutional questions raised by the White House-backed FISA legislation did not merit extended or thoughtful debate.
Seventy-two senators backed the move to end the debate, while 26 sought to keep it going. Two senators – McCain and ailing Massachusetts Democrat Edward Kennedy – missed Wednesday's votes.
Those 26 "no" votes on cloture were cast by Vermont Independent Bernie Sanders and 25 Democrats, including Majority Leader Harry Reid, D-Nevada, Assistant Majority Leader Dick Durbin, Obama's Democratic colleague from Illinois, and Clinton, Obama's primary competitor for the Democratic presidential nomination.
Leading the fight to keep the debate about the FISA rewrite open were Connecticut Democrat Chris Dodd and Wisconsin Democrat Russ Feingold, the two senators Obama promised earlier their year to work with in an effort to block this assault on the Constitution and corporate responsibility.
Said Feingold, "I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure."
Unfortunately, while Obama once promised to work with Feingold, he wasn't listening on Wednesday when the Wisconsin senator explained to his colleagues that granting retroactive immunity to the telecommunications corporations would effectively block the ability of Congress and the courts to address not just massive corporate wrongdoing but attacks on the privacy rights of Americans.
"If Congress short-circuits these lawsuits, we will have lost a prime opportunity to finally achieve accountability for these years of law-breaking," said Feingold, who flatly rejected Obama's argument that, while unappealing in some aspects, the FISA rewrite was somehow acceptable as a whole. "That's why the administration has been fighting so hard for this immunity. It knows that the cases that have been brought directly against the government face much more difficult procedural barriers, and are unlikely to result in rulings on the merits."
Russ Feingold was speaking the truth about a moment in which the ACLU said the Senate was on the verge of passing "an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance."
But Barack Obama did not want to hear it."
Wednesday, July 9, 2008
Today's coverup of surveillance crimes and Barack Obama
More From Glenn Greenwald: "What we learned in December, 2005 that George Bush and the telecoms were doing -- listening in on the private conversations of American citizens without warrants -- is a felony under clear U.S. law, punishable by up to 5 years in prison and/or a $10,000 fine for each offense. Anyone can go read the section of FISA -- right here -- that says that as clearly as can be:
A person is guilty of an offense if he intentionally -- (1) engages in electronic surveillance under color of law except as authorized by statute; . . .
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
It was also as clear a violation of the Fourth Amendment as can be. For the Government to invade our communications with no probable cause showing to a court is exactly what the Founders prohibited as clearly as the English language permitted.
But today, the Democratic-led Congress -- with the support of both John McCain and Barack Obama, neither of whom will even bother to show up and vote -- will cover-up those crimes. Law Professor and Fourth Amendment expert Jonathan Turley was on MSNBC's Countdown with Rachel Maddow last night and gave as succinct an explanation for what Democrats -- not the Bush administration, but Democrats -- will do today. Anyone with any lingering doubts about what is taking place today in our country should watch this:
As Turley says, and as I've written many times over the last two weeks, what is most appalling here beyond the bill itself are the pure falsehoods being spewed to the public about what Congress is doing -- and those falsehoods are largely being spewed not by Republicans. Republicans are gleefully admitting, even boasting, that this bill gives them everything Bush and Cheney wanted and more, and includes only minor changes from the Rockefeller/Cheney Senate bill passed last February (which Obama, seeking the Democratic Party nomination, made a point of opposing).
Rather, the insultingly false claims about this bill -- it brings the FISA court back into eavesdropping! it actually improves civil liberties! Obama will now go after the telecoms criminally! Government spying and lawbreaking isn't really that important anyway! -- are being disseminated by the Democratic Congressional leadership and, most of all, by those desperate to glorify Barack Obama and justify anything and everything he does. Many of these are the same people who spent the last five years screaming that Bush was shredding the Constitution, that spying on Americans was profoundly dangerous, that the political establishment did nothing about Bush's lawbreaking.
It's been quite disturbing to watch them turn on a dime -- completely reverse everything they claimed to believe -- the minute Obama issued his statement saying that he would support this bill. They actually have the audacity to say that this bill -- a bill which Bush, Cheney and the entire GOP eagerly support, while virtually every civil libertarian vehemently opposes -- will increase the civil liberties that Americans enjoy, as though Dick Cheney, Mike McConnell and "Kit" Bond decided that it was urgently important to pass a new bill to restrict presidential spying and enhance our civil liberties. How completely do you have to relinquish your critical faculties at Barack Obama's altar in order to get yourself to think that way?
The issues implicated by this bill -- government spying, lawbreaking, manipulation of national security claims for secrecy and presidential power, the extreme privileges corporations inside Washington receive -- have been at the very heart of progressive complaints against the Bush era for the last seven years. The type of capitulation and complicity which Jay Rockefeller and Steny Hoyer embraced is exactly what progressives have spent the last seven years scathingly attacking.
All of that magically changed for many people -- by no means all -- the day that Obama announced that he supported this "compromise," when these issues were suddenly relegated to nothing more than inconsequential, symbolic distractions, and complicity with Bush lawbreaking magically morphed into shrewd pragmatism. It's the same rationale that the dreaded Blue Dogs have been using since 2001 to justify their complicity which is now pouring out of the mouths of Obama defenders (we need to win elections first and foremost, and can only do that if we don't challenge Republicans on National Security and Terrorism).
* * * * *
Stanford Professor Larry Lessig has been a hard-core Obama supporter since before the primaries even began. He knows the candidate himself and has all sorts of contacts at high levels of the campaign. Yesterday, Lessig wrote a scathing criticism of what the Obama campaign has been doing over the past several weeks: "All signs point to an Obama victory this fall. If the signs are wrong, it will be because of events last month." This is what Lessig said about the Obama campaign's attitude towards the FISA bill:
Yet policy wonks inside the campaign sputter policy that Obama listens to and follows, again, apparently oblivious to how following that advice, when inconsistent with the positions taken in the past, just reinforces the other side's campaign claim that Obama is just another calculating, unprincipled politician.
The best evidence that they don't get this is Telco Immunity. Obama said he would filibuster a FISA bill with Telco Immunity in it. He has now signaled he won't. When you talk to people close to the campaign about this, they say stuff like: "Come on, who really cares about that issue? Does anyone think the left is going to vote for McCain rather than Obama? This was a hard question. We tried to get it right. And anyway, the FISA compromise in the bill was a good one."
So the highest levels of the Obama campaign believe this bill is "a good one." Lessig adds that the perception of Obama's craven, nakedly calculating behavior as illustrated by his support for the FISA bill is by far the largest threat to his candidacy as it "completely undermine Obama's signal virtue -- that he's different":
The Obama campaign seems just blind to the fact that these flips eat away at the most important asset Obama has. It seems oblivious to the consequence of another election in which (many) Democrats aren't deeply motivated to vote (consequence: the GOP wins).
I can't count the number of emails I've received demanding that I stop criticizing Obama for his support of this bill on the ground that such criticisms harm his chances for winning -- as though it's the fault of those who point out what Obama is doing, rather than Obama himself for completely reversing his position, abandoning his clear, prior commitments, and helping to institutionalize the destruction of the Fourth Amendment and the concealment of Bush crimes.
Ultimately, it's the sheer glibness of the support for this corrupt and Bush-enabling bill among Obama and his supporters that is most striking. Revealingly, Lanny Davis -- a pure symbol of everything that is rotted and broken in our political culture -- wrote an Op-Ed yesterday lavishly praising Obama for his support of the FISA bill on the ground that it "provided the senator an important chance to demonstrate his 'Sister Souljah moment.'" Beltway operatives like Davis can only understand the world through the prism of this finite set of clichés -- Stand up the Left. Sister Souljah. Move to the Center. That's the same oh-so-sophisticiated political analysis one finds everywhere to justify what Obama is doing. As Dan Larison put it yesterday:
In Obamaworld, apparently wrecking the Fourth Amendment is roughly equivalent to ridiculing some obscure rapper. The only thing more depressing than the conceit that supporting unconstitutional measures is a way to "signal" to swing voters that you are not a radical loon bent on "ideological purity," which is basically to make defending the Constitution a position held only by radicals and extremists, is the dishonest representation of support for the compromise legislation as being a pro-civil liberties position.
John Nichols of The Nation -- one of the most pro-Obama media organs in the country -- pointed out yesterday that Obama won the critical Wisconsin primary in large part by holding himself out to Democratic voters there -- for whom civil liberties is a vital issue -- as a steadfast ally of Feingold on these issues:
Before the February 19 Wisconsin primary, which confirmed his front-runner status in the race for the Democratic presidential nomination, Illinois Senator Barack Obama went out of his way to associate his candidacy with the name of Wisconsin Senator Russ Feingold. . . .
Obama wanted to secure the support of the substantial portion of Democrats nationally who, in polls conducted in 2006, indicated that they would back Feingold if he entered the presidential race. Internal polls by the various campaigns indicated that Feingold drew as much as 15 percent of the vote in a number of key states, coming mostly from anti-war and pro-civil liberties progressives. . . .
"I am proud to stand with Senator Dodd, Senator Feingold and a grass-roots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty," declared Obama, who indicated that he would support efforts to filibuster any attack on the ability of citizens to use the courts to defend their privacy rights.
Obama's stance helped him. It was cited in endorsements by prominent progressives and newspapers in Wisconsin and other later primary states. No doubt, it contributed to his landslide victory in the Badger State, where the Illinoisan won a vote from Feingold himself.
Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he'll vote for a White House-backed FISA rewrite -- which is likely to be taken up by the Senate this week -- in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.
Who can justify that?
* * * * *
Ultimately, what's most amazing about all of that is that -- as Senate Intelligence Committee member Russ Feingold pointed out yesterday -- even the vast majority of the Congress, let alone Obama apologists, have no idea what these spying programs even entail or how they work. As someone who isn't on the Intelligence Committee, does Obama even know?
Either way, here's what the ACLU's Caroline Fredrickson wrote to The Washington Post yesterday in response to Fred Hiatt's latest Editorial praising Obama and the FISA bill:
The fact is that the revisions of the Foreign Intelligence Surveillance Act under consideration in the Senate this week would virtually do away with the role of the FISA court in overseeing new dragnet surveillance. Its role would be reduced to little more than serving as a rubber stamp.
It is a shame that the paper that uncovered the Watergate scandal, which helped lead to more congressional oversight of executive authority and the checks and balances of FISA, now believes that the president once again should have unfettered power to spy on Americans.
Sen. Feingold -- who, as a member of both the Senate Intelligence and Judiciary Committees, probably knows as much about the NSA program as any member of Congress -- added:
The government absolutely must be able to wiretap suspected terrorists to protect our security, and every member of Congress supports that. With this bill, however, for the first time since FISA was adopted 30 years ago, the government would be authorized to collect all communications into and out of the United States without warrants. That means Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone. This bill overturns the laws and principles that have governed surveillance for the past 30 years.
The San Fransisco Chronicle editorialized today:
Warrantless wiretapping of Americans should outrage Congress into banning the practice. But, in a display of political expediency, the Senate is about to bless it, following a similar cave-in by the House last month.
Making matters worse, both likely presidential candidates -- Sens. Barack Obama and John McCain - plan to reverse their opposition and vote for the White House-backed rewrite of the Foreign Intelligence Surveillance Act. The bigger of the two reversals is Obama, who earlier this year had promised a filibuster to defeat the bill.
These are just facts -- facts about Barack Obama, the FISA bill he supports and which the Democratic Congress will approve today. Recall that James Comey testified last year that what he and other DOJ officials learned in 2004 about Bush's spying activities for the several years prior was so extreme, so unconscionable, so patently illegal that they all -- including even John Ashcroft -- threatened to resign en masse unless it stopped immediately. We still have no idea what those spying activities were. We know, though, that even the right-wing DOJ ideologues who approved of the illegal "Terrorist Surveillance Programs" that we know about found those activities indisputably illegal and wrong. But Barack Obama and the Democratic-led Congress will today enact a bill to immunize all of that, to protect the lawbreakers who were responsible.
As I've said many times before, there are clear differences between an Obama and McCain presidency. Denying that is just as irrational as those for whom the only political rule is Thou Shalt Not Speak Ill of Obama.
But it's equally clear that politicians like Obama are unable within the prevailing political establishment to do much to stop the continued growth of the lawless surveillance state and our two-tiered system of justice, even if they wanted to stop it, even if they were willing to expend political capital to take a stand against it. And Obama -- with his support for this wretched assault on the Constitution and the rule of law -- is demonstrating that, contrary to his many prior statements, these issues are anything but a priority for him (Larry Lessig: Obama aides say "the FISA compromise in the bill was a good one"). Differences between Republican and Democrats exist and are important in many cases, but those differences are often dwarfed by the differences between those entrenched in and dependent upon the Washington Establishment and those -- the vast, vast majority of American citizens -- who are not.
UPDATE: The Savannah Morning News has an article on the ads running against Democratic Rep. John Barrow.
The vote on the Dodd-Feingold-Leahy amendment to remove telecom immunity from the bill is taking place now. I will post the vote total and details as soon as it is done.
UPDATE II: The Dodd-Feingold amendment to remove telecom immunity from the bill just failed by a vote of 32-66.
I was mistaken about Obama's not showing up to vote (that was the case, as I understood it, when the vote was scheduled for yesterday). He is in the Senate and, as he said he would, just voted (along with Hillary Clinton) in favor of the amendment to remove telecom immunity from the bill.
From listening, these are the Democrats who have voted in favor of removing immunity from the bill: Akaka - Baucus - Biden - Bingaman - Boxer - Brown - Byrd - Cantwell - Cardin - Casey - Clinton - Dorgan - Durbin - Feingold - Harkin - Kerry - Klobuchar - Lautenberg - Leahy - Levin - Mendenez - Murray - Obama - Reed - Reid - Sanders (I) - Schuemer - Stabenow - Tester - Whitehouse - Wyden.
Every Republican (and Lieberman) voted against removing immunity (including Arlen Specter, who spent all day arguing against immunity). Democrats voting against removing immunity: Bayh - Carper - Conrad - Feinstein - Innouye - Johnson - Kohl - Landrieu - Lincoln - McCaskill - Mikulski - Nelson (FL) - Nelson (Neb.) - Pryor - Rockefeller - Salazar - Webb.
Specter's amendment is next (to ban immunity if the spying was unconstitutional). Then they will vote on the Bingaman amendment (which I wrote about yesterday). They will both fail, and then they will vote on the final bill in its unchanged form.
UPDATE III: Specter's amendment -- merely to require the court to determine the constitutionality of the NSA spying program and condition immunity on a finding of constitutionality -- just failed 37-61. Obama (and Clinton) voted in favor of the amendment, and Specter was the only Republican to do so.
All Republicans (and Lieberman) voted against, and these were the Democrats voting against: Bayh - Carper - Johnson - Landrieu - Lincoln - Mikulski - Nelson (FL) - Nelson (Neb.) - Pryor - Rockefeller - Salazar. [NOTE: I'm recording these roll calls from watching the proceedings, and so it's likely there are some errors and omissions. I will correct them as they are brought to my attention and will link to the official roll call vote once it is available]. The Bingaman amendment is next.
UPDATE IV: The Bingaman amendment -- merely to require that the Senate waits until the IG audit of the NSA program is complete before immunizing the telecoms (and here's an excellent piece documenting how inadequate IG investigations are for real oversight) -- just failed by a vote of 42-56 (60 votes were required for passage, courtesy of an agreement not to force the GOP to do a mount filibuster).
Obama (and Clinton) voted in favor of the Bingaman amendment. McCain wasn't present to vote on any of this (though almost certainly would have voted with the GOP on all amendments). Specter was the only Republican to vote in favor of the Bingaman amendment. The Democrats voting against: Bayh - Landrieu - Nelson (Neb.) - Pryor - Rockefeller. They are now in recess until the afternoon, after which they will vote to pass the underlying bill.
UPDATE V: I was on the Brian Lehrer Show this morning debating the FISA bill with former Clinton National Security Advisor Nancy Soderberg (who favors the bill). Because of some technical difficulties, I wasn't on the show until roughly 7:30 in. That debate can be heard here.
UPDATE VI: Cloture on the bill just passed 72-26. Obama voted in favor of cloture along with all Republicans. Hillary Clinton voted against cloture.
After the cloture vote, the Senate just approved final passage of the FISA bill, by a vote of 69-28. Obama voted with all Republicans for the bill. Hillary Clinton voted against it.
Democrats voting in favor of final passage of the FISA bill: Bayh - Carper - Casey - Conrad - Dorgan - Feinstein - Innuoye - Kohl - Landrieu - Lincoln - McCaskill - Mukulski - Nelson (Neb.) - Nelson (Fla.) - Obama - Pryor - Rockefeller - Salazar - Webb - Whitehouse.
Democrats voting against final passage of the FISA bill: Akaka - Biden - Bingaman - Boxer - Brown - Cantwell - Cardin - Clinton - Dodd - Dorgan - Durbin - Feingold - Harkin - Kerry - Leahy - Levin - Lautenberg - Murray - Reed - Reid - Sanders - Schumer - Stabenow - Tester - Wyden.
"
A person is guilty of an offense if he intentionally -- (1) engages in electronic surveillance under color of law except as authorized by statute; . . .
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
It was also as clear a violation of the Fourth Amendment as can be. For the Government to invade our communications with no probable cause showing to a court is exactly what the Founders prohibited as clearly as the English language permitted.
But today, the Democratic-led Congress -- with the support of both John McCain and Barack Obama, neither of whom will even bother to show up and vote -- will cover-up those crimes. Law Professor and Fourth Amendment expert Jonathan Turley was on MSNBC's Countdown with Rachel Maddow last night and gave as succinct an explanation for what Democrats -- not the Bush administration, but Democrats -- will do today. Anyone with any lingering doubts about what is taking place today in our country should watch this:
As Turley says, and as I've written many times over the last two weeks, what is most appalling here beyond the bill itself are the pure falsehoods being spewed to the public about what Congress is doing -- and those falsehoods are largely being spewed not by Republicans. Republicans are gleefully admitting, even boasting, that this bill gives them everything Bush and Cheney wanted and more, and includes only minor changes from the Rockefeller/Cheney Senate bill passed last February (which Obama, seeking the Democratic Party nomination, made a point of opposing).
Rather, the insultingly false claims about this bill -- it brings the FISA court back into eavesdropping! it actually improves civil liberties! Obama will now go after the telecoms criminally! Government spying and lawbreaking isn't really that important anyway! -- are being disseminated by the Democratic Congressional leadership and, most of all, by those desperate to glorify Barack Obama and justify anything and everything he does. Many of these are the same people who spent the last five years screaming that Bush was shredding the Constitution, that spying on Americans was profoundly dangerous, that the political establishment did nothing about Bush's lawbreaking.
It's been quite disturbing to watch them turn on a dime -- completely reverse everything they claimed to believe -- the minute Obama issued his statement saying that he would support this bill. They actually have the audacity to say that this bill -- a bill which Bush, Cheney and the entire GOP eagerly support, while virtually every civil libertarian vehemently opposes -- will increase the civil liberties that Americans enjoy, as though Dick Cheney, Mike McConnell and "Kit" Bond decided that it was urgently important to pass a new bill to restrict presidential spying and enhance our civil liberties. How completely do you have to relinquish your critical faculties at Barack Obama's altar in order to get yourself to think that way?
The issues implicated by this bill -- government spying, lawbreaking, manipulation of national security claims for secrecy and presidential power, the extreme privileges corporations inside Washington receive -- have been at the very heart of progressive complaints against the Bush era for the last seven years. The type of capitulation and complicity which Jay Rockefeller and Steny Hoyer embraced is exactly what progressives have spent the last seven years scathingly attacking.
All of that magically changed for many people -- by no means all -- the day that Obama announced that he supported this "compromise," when these issues were suddenly relegated to nothing more than inconsequential, symbolic distractions, and complicity with Bush lawbreaking magically morphed into shrewd pragmatism. It's the same rationale that the dreaded Blue Dogs have been using since 2001 to justify their complicity which is now pouring out of the mouths of Obama defenders (we need to win elections first and foremost, and can only do that if we don't challenge Republicans on National Security and Terrorism).
* * * * *
Stanford Professor Larry Lessig has been a hard-core Obama supporter since before the primaries even began. He knows the candidate himself and has all sorts of contacts at high levels of the campaign. Yesterday, Lessig wrote a scathing criticism of what the Obama campaign has been doing over the past several weeks: "All signs point to an Obama victory this fall. If the signs are wrong, it will be because of events last month." This is what Lessig said about the Obama campaign's attitude towards the FISA bill:
Yet policy wonks inside the campaign sputter policy that Obama listens to and follows, again, apparently oblivious to how following that advice, when inconsistent with the positions taken in the past, just reinforces the other side's campaign claim that Obama is just another calculating, unprincipled politician.
The best evidence that they don't get this is Telco Immunity. Obama said he would filibuster a FISA bill with Telco Immunity in it. He has now signaled he won't. When you talk to people close to the campaign about this, they say stuff like: "Come on, who really cares about that issue? Does anyone think the left is going to vote for McCain rather than Obama? This was a hard question. We tried to get it right. And anyway, the FISA compromise in the bill was a good one."
So the highest levels of the Obama campaign believe this bill is "a good one." Lessig adds that the perception of Obama's craven, nakedly calculating behavior as illustrated by his support for the FISA bill is by far the largest threat to his candidacy as it "completely undermine Obama's signal virtue -- that he's different":
The Obama campaign seems just blind to the fact that these flips eat away at the most important asset Obama has. It seems oblivious to the consequence of another election in which (many) Democrats aren't deeply motivated to vote (consequence: the GOP wins).
I can't count the number of emails I've received demanding that I stop criticizing Obama for his support of this bill on the ground that such criticisms harm his chances for winning -- as though it's the fault of those who point out what Obama is doing, rather than Obama himself for completely reversing his position, abandoning his clear, prior commitments, and helping to institutionalize the destruction of the Fourth Amendment and the concealment of Bush crimes.
Ultimately, it's the sheer glibness of the support for this corrupt and Bush-enabling bill among Obama and his supporters that is most striking. Revealingly, Lanny Davis -- a pure symbol of everything that is rotted and broken in our political culture -- wrote an Op-Ed yesterday lavishly praising Obama for his support of the FISA bill on the ground that it "provided the senator an important chance to demonstrate his 'Sister Souljah moment.'" Beltway operatives like Davis can only understand the world through the prism of this finite set of clichés -- Stand up the Left. Sister Souljah. Move to the Center. That's the same oh-so-sophisticiated political analysis one finds everywhere to justify what Obama is doing. As Dan Larison put it yesterday:
In Obamaworld, apparently wrecking the Fourth Amendment is roughly equivalent to ridiculing some obscure rapper. The only thing more depressing than the conceit that supporting unconstitutional measures is a way to "signal" to swing voters that you are not a radical loon bent on "ideological purity," which is basically to make defending the Constitution a position held only by radicals and extremists, is the dishonest representation of support for the compromise legislation as being a pro-civil liberties position.
John Nichols of The Nation -- one of the most pro-Obama media organs in the country -- pointed out yesterday that Obama won the critical Wisconsin primary in large part by holding himself out to Democratic voters there -- for whom civil liberties is a vital issue -- as a steadfast ally of Feingold on these issues:
Before the February 19 Wisconsin primary, which confirmed his front-runner status in the race for the Democratic presidential nomination, Illinois Senator Barack Obama went out of his way to associate his candidacy with the name of Wisconsin Senator Russ Feingold. . . .
Obama wanted to secure the support of the substantial portion of Democrats nationally who, in polls conducted in 2006, indicated that they would back Feingold if he entered the presidential race. Internal polls by the various campaigns indicated that Feingold drew as much as 15 percent of the vote in a number of key states, coming mostly from anti-war and pro-civil liberties progressives. . . .
"I am proud to stand with Senator Dodd, Senator Feingold and a grass-roots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty," declared Obama, who indicated that he would support efforts to filibuster any attack on the ability of citizens to use the courts to defend their privacy rights.
Obama's stance helped him. It was cited in endorsements by prominent progressives and newspapers in Wisconsin and other later primary states. No doubt, it contributed to his landslide victory in the Badger State, where the Illinoisan won a vote from Feingold himself.
Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he'll vote for a White House-backed FISA rewrite -- which is likely to be taken up by the Senate this week -- in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.
Who can justify that?
* * * * *
Ultimately, what's most amazing about all of that is that -- as Senate Intelligence Committee member Russ Feingold pointed out yesterday -- even the vast majority of the Congress, let alone Obama apologists, have no idea what these spying programs even entail or how they work. As someone who isn't on the Intelligence Committee, does Obama even know?
Either way, here's what the ACLU's Caroline Fredrickson wrote to The Washington Post yesterday in response to Fred Hiatt's latest Editorial praising Obama and the FISA bill:
The fact is that the revisions of the Foreign Intelligence Surveillance Act under consideration in the Senate this week would virtually do away with the role of the FISA court in overseeing new dragnet surveillance. Its role would be reduced to little more than serving as a rubber stamp.
It is a shame that the paper that uncovered the Watergate scandal, which helped lead to more congressional oversight of executive authority and the checks and balances of FISA, now believes that the president once again should have unfettered power to spy on Americans.
Sen. Feingold -- who, as a member of both the Senate Intelligence and Judiciary Committees, probably knows as much about the NSA program as any member of Congress -- added:
The government absolutely must be able to wiretap suspected terrorists to protect our security, and every member of Congress supports that. With this bill, however, for the first time since FISA was adopted 30 years ago, the government would be authorized to collect all communications into and out of the United States without warrants. That means Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone. This bill overturns the laws and principles that have governed surveillance for the past 30 years.
The San Fransisco Chronicle editorialized today:
Warrantless wiretapping of Americans should outrage Congress into banning the practice. But, in a display of political expediency, the Senate is about to bless it, following a similar cave-in by the House last month.
Making matters worse, both likely presidential candidates -- Sens. Barack Obama and John McCain - plan to reverse their opposition and vote for the White House-backed rewrite of the Foreign Intelligence Surveillance Act. The bigger of the two reversals is Obama, who earlier this year had promised a filibuster to defeat the bill.
These are just facts -- facts about Barack Obama, the FISA bill he supports and which the Democratic Congress will approve today. Recall that James Comey testified last year that what he and other DOJ officials learned in 2004 about Bush's spying activities for the several years prior was so extreme, so unconscionable, so patently illegal that they all -- including even John Ashcroft -- threatened to resign en masse unless it stopped immediately. We still have no idea what those spying activities were. We know, though, that even the right-wing DOJ ideologues who approved of the illegal "Terrorist Surveillance Programs" that we know about found those activities indisputably illegal and wrong. But Barack Obama and the Democratic-led Congress will today enact a bill to immunize all of that, to protect the lawbreakers who were responsible.
As I've said many times before, there are clear differences between an Obama and McCain presidency. Denying that is just as irrational as those for whom the only political rule is Thou Shalt Not Speak Ill of Obama.
But it's equally clear that politicians like Obama are unable within the prevailing political establishment to do much to stop the continued growth of the lawless surveillance state and our two-tiered system of justice, even if they wanted to stop it, even if they were willing to expend political capital to take a stand against it. And Obama -- with his support for this wretched assault on the Constitution and the rule of law -- is demonstrating that, contrary to his many prior statements, these issues are anything but a priority for him (Larry Lessig: Obama aides say "the FISA compromise in the bill was a good one"). Differences between Republican and Democrats exist and are important in many cases, but those differences are often dwarfed by the differences between those entrenched in and dependent upon the Washington Establishment and those -- the vast, vast majority of American citizens -- who are not.
UPDATE: The Savannah Morning News has an article on the ads running against Democratic Rep. John Barrow.
The vote on the Dodd-Feingold-Leahy amendment to remove telecom immunity from the bill is taking place now. I will post the vote total and details as soon as it is done.
UPDATE II: The Dodd-Feingold amendment to remove telecom immunity from the bill just failed by a vote of 32-66.
I was mistaken about Obama's not showing up to vote (that was the case, as I understood it, when the vote was scheduled for yesterday). He is in the Senate and, as he said he would, just voted (along with Hillary Clinton) in favor of the amendment to remove telecom immunity from the bill.
From listening, these are the Democrats who have voted in favor of removing immunity from the bill: Akaka - Baucus - Biden - Bingaman - Boxer - Brown - Byrd - Cantwell - Cardin - Casey - Clinton - Dorgan - Durbin - Feingold - Harkin - Kerry - Klobuchar - Lautenberg - Leahy - Levin - Mendenez - Murray - Obama - Reed - Reid - Sanders (I) - Schuemer - Stabenow - Tester - Whitehouse - Wyden.
Every Republican (and Lieberman) voted against removing immunity (including Arlen Specter, who spent all day arguing against immunity). Democrats voting against removing immunity: Bayh - Carper - Conrad - Feinstein - Innouye - Johnson - Kohl - Landrieu - Lincoln - McCaskill - Mikulski - Nelson (FL) - Nelson (Neb.) - Pryor - Rockefeller - Salazar - Webb.
Specter's amendment is next (to ban immunity if the spying was unconstitutional). Then they will vote on the Bingaman amendment (which I wrote about yesterday). They will both fail, and then they will vote on the final bill in its unchanged form.
UPDATE III: Specter's amendment -- merely to require the court to determine the constitutionality of the NSA spying program and condition immunity on a finding of constitutionality -- just failed 37-61. Obama (and Clinton) voted in favor of the amendment, and Specter was the only Republican to do so.
All Republicans (and Lieberman) voted against, and these were the Democrats voting against: Bayh - Carper - Johnson - Landrieu - Lincoln - Mikulski - Nelson (FL) - Nelson (Neb.) - Pryor - Rockefeller - Salazar. [NOTE: I'm recording these roll calls from watching the proceedings, and so it's likely there are some errors and omissions. I will correct them as they are brought to my attention and will link to the official roll call vote once it is available]. The Bingaman amendment is next.
UPDATE IV: The Bingaman amendment -- merely to require that the Senate waits until the IG audit of the NSA program is complete before immunizing the telecoms (and here's an excellent piece documenting how inadequate IG investigations are for real oversight) -- just failed by a vote of 42-56 (60 votes were required for passage, courtesy of an agreement not to force the GOP to do a mount filibuster).
Obama (and Clinton) voted in favor of the Bingaman amendment. McCain wasn't present to vote on any of this (though almost certainly would have voted with the GOP on all amendments). Specter was the only Republican to vote in favor of the Bingaman amendment. The Democrats voting against: Bayh - Landrieu - Nelson (Neb.) - Pryor - Rockefeller. They are now in recess until the afternoon, after which they will vote to pass the underlying bill.
UPDATE V: I was on the Brian Lehrer Show this morning debating the FISA bill with former Clinton National Security Advisor Nancy Soderberg (who favors the bill). Because of some technical difficulties, I wasn't on the show until roughly 7:30 in. That debate can be heard here.
UPDATE VI: Cloture on the bill just passed 72-26. Obama voted in favor of cloture along with all Republicans. Hillary Clinton voted against cloture.
After the cloture vote, the Senate just approved final passage of the FISA bill, by a vote of 69-28. Obama voted with all Republicans for the bill. Hillary Clinton voted against it.
Democrats voting in favor of final passage of the FISA bill: Bayh - Carper - Casey - Conrad - Dorgan - Feinstein - Innuoye - Kohl - Landrieu - Lincoln - McCaskill - Mukulski - Nelson (Neb.) - Nelson (Fla.) - Obama - Pryor - Rockefeller - Salazar - Webb - Whitehouse.
Democrats voting against final passage of the FISA bill: Akaka - Biden - Bingaman - Boxer - Brown - Cantwell - Cardin - Clinton - Dodd - Dorgan - Durbin - Feingold - Harkin - Kerry - Leahy - Levin - Lautenberg - Murray - Reed - Reid - Sanders - Schumer - Stabenow - Tester - Wyden.
"
Congress votes to immunize lawbreaking telecoms, legalize warrantless eavesdropping
From Glenn Greenwald in Salon.com on July 8, 2008:
"The Democratic-led Congress this afternoon voted to put an end to the NSA spying scandal, as the Senate approved a bill -- approved last week by the House -- to immunize lawbreaking telecoms, terminate all pending lawsuits against them, and vest whole new warrantless eavesdropping powers in the President. The vote in favor of the new FISA bill was 69-28. Barack Obama joined every Senate Republican (and every House Republican other than one) by voting in favor of it, while his now-vanquished primary rival, Sen. Hillary Clinton, voted against it. John McCain wasn't present for any of the votes, but shared Obama's support for the bill. The bill will now be sent to an extremely happy George Bush, who already announced that he enthusiastically supports it, and he will sign it into law very shortly.
Prior to final approval, the Senate, in the morning, rejected three separate amendments which would have improved the bill but which, the White House threatened, would have prompted a veto. With those amendments defeated, the Senate then passed the same bill passed last week by the House, which means it is that bill, in unchanged form, that will be signed into law -- just as the Bush administration demanded.
The first amendment, from Sens. Dodd, Feingold and Leahy, would have stripped from the bill the provision immunizing the telecoms. That amendment failed by a vote of 32-66, with all Republicans and 17 Democrats against (the roll call vote is here). The next amendment was offered by Sen. Arlen Specter, which would have merely required a court to determine the constitutionality of the NSA spying program and grant telecom immunity only upon a finding of constitutionality. Specter's amendment failed, 37-61 (roll call vote is here). The third amendment to fail was one sponsored by Sen. Jeff Bingaman, merely requiring that the Senate wait until the Inspector General audits of the NSA program are complete before immunizing the telecoms. The Bingaman amendment failed by a vote of 42-56 (roll call vote here). Both Obama and Clinton voted for all three failed amendments.
The Senators then voted for "cloture" on the underlying FISA bill -- the procedure that allows the Senate to overcome any filibusters -- and it passed by a vote of 72-26. Obama voted along with all Republicans for cloture. Hillary Clinton voted with 25 other Democrats against cloture (strangely, Clinton originally voted AYE on cloture, and then changed her vote to NAY; I'm trying to find out what explains that).
With cloture approved, the bill itself then proceeded to pass by a vote of 69-28 (roll call vote here), thereby immunizing telecoms and legalizing warrantless eavesdropping. Again, while Obama voted with all Republicans to pass the bill, Sen. Clinton voted against it.
Obama's vote in favor of cloture, in particular, cemented the complete betrayal of the commitment he made back in October when seeking the Democratic nomination. Back then, Obama's spokesman -- in response to demands for a clear statement of Obama's views on the spying controversy after he had previously given a vague and noncommittal statement -- issued this emphatic vow:
To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.
But the bill today does include retroactive immunity for telecommunications companies. Nonetheless, Obama voted for cloture on the bill -- the exact opposition of supporting a filibuster -- and then voted for the bill itself. A more complete abandonment of an unambiguous campaign promise is difficult of imagine. I wrote extensively about Obama's support for the FISA bill, and what it means, earlier today.
With their vote today, the Democratic-led Congress has covered-up years of deliberate surveillance crimes by the Bush administration and the telecom industry, and has dramatically advanced a full-scale attack on the rule of law in this country...
What is most striking is that when the Congress was controlled by the GOP -- when the Senate was run by Bill Frist and the House by Denny Hastert -- the Bush administration attempted to have a bill passed very similar to the one that just passed today. But they were unable to do so. The administration had to wait until Harry Reid, Nancy Pelosi and the Democrats took over Congress before being able to put a corrupt end to the scandal that began when, in December of 2005, the New York Times revealed that the President had been breaking the law for years by spying on Americans without the warrants required by law.
Yet again, the Democratic Congress ignored the views of their own supporters in order to comply with the orders and wishes of the Bush administration. It is therefore hardly a surprise that, yesterday, Rasmussen Reports revealed this rather humiliating finding:
Congressional Approval Falls to Single Digits for First Time Ever
The percentage of voters who give Congress good or excellent ratings has fallen to single digits for the first time in Rasmussen Reports tracking history. This month, just 9% say Congress is doing a good or excellent job. Most voters (52%) say Congress is doing a poor job, which ties the record high in that dubious category.
The Congress, with a powerful cast of bipartisan lobbyists and the establishment media class lined up behind telecom immunity and warrantless eavesdropping, looked poised to pass this bill back last December, but a large-scale protest was organized -- largely online -- by huge numbers of American who were opposed to warrantless eavesdropping and telecom immunity, and that protest disrupted that plan (the movement borne of opposition to this bill is only beginning today, not ending, here). Today, Sen. Chris Dodd, the leader of the opposition effort along with Russ Feingold, said this on the Senate floor:
Lastly, I want to thank the thousands who joined with us in this fight around the country -- those who took to the blogs, gathered signatures for online petitions and created a movement behind this issue. Men and women, young and old, who stood up, spoke out and gave us the strength to carry on this fight. Not one of them had to be involved, but each choose to become involved for one reason and one reason alone: Because they love their country. They remind us that the "silent encroachments of those in power" Madison spoke of can, in fact, be heard, if only we listen.
Today, the Democratic-led Senate ignored those protests, acted to protect the single most flagrant act of Bush lawbreaking of the last seven years, eviscerated the core Fourth Amendment prohibition of surveillance without warrants, gave an extraordinary and extraordinarily corrupt gift to an extremely powerful corporate lobby, and cemented the proposition that the rule of law does not apply to the Washington Establishment.
* * * * *
"The Democratic-led Congress this afternoon voted to put an end to the NSA spying scandal, as the Senate approved a bill -- approved last week by the House -- to immunize lawbreaking telecoms, terminate all pending lawsuits against them, and vest whole new warrantless eavesdropping powers in the President. The vote in favor of the new FISA bill was 69-28. Barack Obama joined every Senate Republican (and every House Republican other than one) by voting in favor of it, while his now-vanquished primary rival, Sen. Hillary Clinton, voted against it. John McCain wasn't present for any of the votes, but shared Obama's support for the bill. The bill will now be sent to an extremely happy George Bush, who already announced that he enthusiastically supports it, and he will sign it into law very shortly.
Prior to final approval, the Senate, in the morning, rejected three separate amendments which would have improved the bill but which, the White House threatened, would have prompted a veto. With those amendments defeated, the Senate then passed the same bill passed last week by the House, which means it is that bill, in unchanged form, that will be signed into law -- just as the Bush administration demanded.
The first amendment, from Sens. Dodd, Feingold and Leahy, would have stripped from the bill the provision immunizing the telecoms. That amendment failed by a vote of 32-66, with all Republicans and 17 Democrats against (the roll call vote is here). The next amendment was offered by Sen. Arlen Specter, which would have merely required a court to determine the constitutionality of the NSA spying program and grant telecom immunity only upon a finding of constitutionality. Specter's amendment failed, 37-61 (roll call vote is here). The third amendment to fail was one sponsored by Sen. Jeff Bingaman, merely requiring that the Senate wait until the Inspector General audits of the NSA program are complete before immunizing the telecoms. The Bingaman amendment failed by a vote of 42-56 (roll call vote here). Both Obama and Clinton voted for all three failed amendments.
The Senators then voted for "cloture" on the underlying FISA bill -- the procedure that allows the Senate to overcome any filibusters -- and it passed by a vote of 72-26. Obama voted along with all Republicans for cloture. Hillary Clinton voted with 25 other Democrats against cloture (strangely, Clinton originally voted AYE on cloture, and then changed her vote to NAY; I'm trying to find out what explains that).
With cloture approved, the bill itself then proceeded to pass by a vote of 69-28 (roll call vote here), thereby immunizing telecoms and legalizing warrantless eavesdropping. Again, while Obama voted with all Republicans to pass the bill, Sen. Clinton voted against it.
Obama's vote in favor of cloture, in particular, cemented the complete betrayal of the commitment he made back in October when seeking the Democratic nomination. Back then, Obama's spokesman -- in response to demands for a clear statement of Obama's views on the spying controversy after he had previously given a vague and noncommittal statement -- issued this emphatic vow:
To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.
But the bill today does include retroactive immunity for telecommunications companies. Nonetheless, Obama voted for cloture on the bill -- the exact opposition of supporting a filibuster -- and then voted for the bill itself. A more complete abandonment of an unambiguous campaign promise is difficult of imagine. I wrote extensively about Obama's support for the FISA bill, and what it means, earlier today.
With their vote today, the Democratic-led Congress has covered-up years of deliberate surveillance crimes by the Bush administration and the telecom industry, and has dramatically advanced a full-scale attack on the rule of law in this country...
What is most striking is that when the Congress was controlled by the GOP -- when the Senate was run by Bill Frist and the House by Denny Hastert -- the Bush administration attempted to have a bill passed very similar to the one that just passed today. But they were unable to do so. The administration had to wait until Harry Reid, Nancy Pelosi and the Democrats took over Congress before being able to put a corrupt end to the scandal that began when, in December of 2005, the New York Times revealed that the President had been breaking the law for years by spying on Americans without the warrants required by law.
Yet again, the Democratic Congress ignored the views of their own supporters in order to comply with the orders and wishes of the Bush administration. It is therefore hardly a surprise that, yesterday, Rasmussen Reports revealed this rather humiliating finding:
Congressional Approval Falls to Single Digits for First Time Ever
The percentage of voters who give Congress good or excellent ratings has fallen to single digits for the first time in Rasmussen Reports tracking history. This month, just 9% say Congress is doing a good or excellent job. Most voters (52%) say Congress is doing a poor job, which ties the record high in that dubious category.
The Congress, with a powerful cast of bipartisan lobbyists and the establishment media class lined up behind telecom immunity and warrantless eavesdropping, looked poised to pass this bill back last December, but a large-scale protest was organized -- largely online -- by huge numbers of American who were opposed to warrantless eavesdropping and telecom immunity, and that protest disrupted that plan (the movement borne of opposition to this bill is only beginning today, not ending, here). Today, Sen. Chris Dodd, the leader of the opposition effort along with Russ Feingold, said this on the Senate floor:
Lastly, I want to thank the thousands who joined with us in this fight around the country -- those who took to the blogs, gathered signatures for online petitions and created a movement behind this issue. Men and women, young and old, who stood up, spoke out and gave us the strength to carry on this fight. Not one of them had to be involved, but each choose to become involved for one reason and one reason alone: Because they love their country. They remind us that the "silent encroachments of those in power" Madison spoke of can, in fact, be heard, if only we listen.
Today, the Democratic-led Senate ignored those protests, acted to protect the single most flagrant act of Bush lawbreaking of the last seven years, eviscerated the core Fourth Amendment prohibition of surveillance without warrants, gave an extraordinary and extraordinarily corrupt gift to an extremely powerful corporate lobby, and cemented the proposition that the rule of law does not apply to the Washington Establishment.
* * * * *
FISA Passes Senate, Vote 69 to 28 - Obama Votes to Shred Constitution
From Talkleft.com on July 9, 2008:
"Via the ACLU (no link yet but check here soon):
The FISA Amendments Act of 2008 was approved by a vote of 69-28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times.
On the bill:
[T]he Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance.
“Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.”
More...
The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment’s protection against unreasonable search and seizure.
The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government’s general spying procedures are found insufficient or unconstitutional by the FISC. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime. A provision touted as a major “concession” by proponents of the bill calls for investigations by the inspectors general of four agencies overseeing spying activities. But members of Congress who do not sit on the Judiciary or Intelligence committees will not be guaranteed access to the agencies’ reports.
The bill essentially grants absolute retroactive immunity to telecommunication companies that facilitated the president’s warrantless wiretapping program over the last seven years by ensuring the dismissal of court cases pending against those companies. The test for the companies’ right to immunity is not whether the government certifications they acted on were actually legal – only whether they were issued. Because it is public knowledge that certifications were issued, all of the pending cases will be summarily dismissed. This means Americans may never learn the truth about what the companies and the government did with our private communications.
“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill – soon to be law – is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.”
"Via the ACLU (no link yet but check here soon):
The FISA Amendments Act of 2008 was approved by a vote of 69-28 and is expected to be signed into law by President Bush shortly. This bill essentially legalizes the president’s unlawful warrantless wiretapping program revealed in December 2005 by the New York Times.
On the bill:
[T]he Senate passed an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance.
“Once again, Congress blinked and succumbed to the president’s fear-mongering. With today’s vote, the government has been given a green light to expand its power to spy on Americans and run roughshod over the Constitution,” said Anthony D. Romero, Executive Director of the American Civil Liberties Union. “This legislation will give the government unfettered and unchecked access to innocent Americans’ international communications without a warrant. This is not only unconstitutional, but absolutely un-American.”
More...
The FISA Amendments Act nearly eviscerates oversight of government surveillance by allowing the Foreign Intelligence Surveillance Court (FISC) to review only general procedures for spying rather than individual warrants. The FISC will not be told any specifics about who will actually be wiretapped, thereby undercutting any meaningful role for the court and violating the Fourth Amendment’s protection against unreasonable search and seizure.
The bill further trivializes court review by authorizing the government to continue a surveillance program even after the government’s general spying procedures are found insufficient or unconstitutional by the FISC. The government has the authority to wiretap through the entire appeals process, and then keep and use whatever information was gathered in the meantime. A provision touted as a major “concession” by proponents of the bill calls for investigations by the inspectors general of four agencies overseeing spying activities. But members of Congress who do not sit on the Judiciary or Intelligence committees will not be guaranteed access to the agencies’ reports.
The bill essentially grants absolute retroactive immunity to telecommunication companies that facilitated the president’s warrantless wiretapping program over the last seven years by ensuring the dismissal of court cases pending against those companies. The test for the companies’ right to immunity is not whether the government certifications they acted on were actually legal – only whether they were issued. Because it is public knowledge that certifications were issued, all of the pending cases will be summarily dismissed. This means Americans may never learn the truth about what the companies and the government did with our private communications.
“With one vote, Congress has strengthened the executive branch, weakened the judiciary and rendered itself irrelevant,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “This bill – soon to be law – is a constitutional nightmare. Americans should know that if this legislation is enacted and upheld, what they say on international phone calls or emails is no longer private. The government can listen in without having a specific reason to do so. Our rights as Americans have been curtailed and our privacy can no longer be assumed.”
I Do Not Believe Obama On The FISA Capitulation Bill
From Talkleft.con by Big Tent Democrat on July 9, 2008:
"Yesterday, Barack Obama said:
Obama blamed criticism from "my friends on the left" and "some of the media" in part on cynicism that ascribes political motives for every move candidates make. "You're not going to agree with me on 100 percent of what I think, but don't assume that if I don't agree with you on something that it must be because I'm doing that politically," he said. "I may just disagree with you."
I do not believe Barack Obama. I will go further. I do not want to believe him. Because the alternative is worse. Because if Obama believes the BS he said about the FISA Capitulation bill, then he is not fit to be President. More . . .
If Barack Obama really believes this about the FISA Capitulation bill, then he is as dangerous as George W. Bush:
[G]iven the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives -- and the liberty -- of the American people."
(Emphasis supplied.) Excuse me, but the Constitution does not work that way. Firm pledges from the President do not compensate for evisceration of the Constitutional right to privacy. As John Adams said:
There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.
(Emphasis supplied.) Obama's "firm pledge," (given he pledged to filibuster any bill that contained telecom immunity, the irony of his new pledge is nauseating), IF HE WINS is worth nothing. His position here is nothing short of disgusting.
But politics is disgusting. And pols do what they do. I remind Barack Obama of the words of Louis Brandeis:
Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
They tell me Obama is a Constitutional scholar. I assume he is familiar with Brandeis' words. So no, I do not believe he believes this FISA Capitulation bill is good or even acceptable. I believe he is acting out of political calculation (and bad political calculation at that.) Indeed, if that is not the case, then his position is unacceptable and he is not fit to be President. "
"Yesterday, Barack Obama said:
Obama blamed criticism from "my friends on the left" and "some of the media" in part on cynicism that ascribes political motives for every move candidates make. "You're not going to agree with me on 100 percent of what I think, but don't assume that if I don't agree with you on something that it must be because I'm doing that politically," he said. "I may just disagree with you."
I do not believe Barack Obama. I will go further. I do not want to believe him. Because the alternative is worse. Because if Obama believes the BS he said about the FISA Capitulation bill, then he is not fit to be President. More . . .
If Barack Obama really believes this about the FISA Capitulation bill, then he is as dangerous as George W. Bush:
[G]iven the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives -- and the liberty -- of the American people."
(Emphasis supplied.) Excuse me, but the Constitution does not work that way. Firm pledges from the President do not compensate for evisceration of the Constitutional right to privacy. As John Adams said:
There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.
(Emphasis supplied.) Obama's "firm pledge," (given he pledged to filibuster any bill that contained telecom immunity, the irony of his new pledge is nauseating), IF HE WINS is worth nothing. His position here is nothing short of disgusting.
But politics is disgusting. And pols do what they do. I remind Barack Obama of the words of Louis Brandeis:
Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
They tell me Obama is a Constitutional scholar. I assume he is familiar with Brandeis' words. So no, I do not believe he believes this FISA Capitulation bill is good or even acceptable. I believe he is acting out of political calculation (and bad political calculation at that.) Indeed, if that is not the case, then his position is unacceptable and he is not fit to be President. "
Tuesday, July 8, 2008
Obama Should (Still) Be Standing With Feingold on FISA
From The Nation by John Nichols on July 7, 2008:
"Before the February 19 Wisconsin primary, which confirmed his front-runner status in the race for the Democratic presidential nomination, Illinois Senator Barack Obama went out of his way to associate his candidacy with the name of Wisconsin Senator Russ Feingold.
It wasn't just about winning Wisconsin, although that undoubtedly was part of the calculus.
Obama wanted to secure the support of the substantial portion of Democrats nationally who, in polls conducted in 2006, indicated that they would back Feingold if he entered the presidential race. Internal polls by the various campaigns indicated that Feingold drew as much as 15 percent of the vote in a number of key states, coming mostly from anti-war and pro-civil liberties progressives.
Obama knew he needed the support of those highly engaged party activists. And so, in early February, he embraced an issue that mattered a lot to them: the defense of civil liberties.
Obama, Feingold and Connecticut Senator Chris Dodd did not want Congress to support the Bush administration's efforts to block civil suits against telecommunications firms for spying on customers.
"I am proud to stand with Senator Dodd, Senator Feingold and a grass-roots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty," declared Obama, who indicated that he would support efforts to filibuster any attack on the ability of citizens to use the courts to defend their privacy rights.
Obama's stance helped him. It was cited in endorsements by prominent progressives and newspapers in Wisconsin and other later primary states. No doubt, it contributed to his landslide victory in the Badger State, where the Illinoisan won a vote from Feingold himself.
Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he'll vote for a White House-backed FISA rewrite -- which is likely to be taken up by the Senate this week -- in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.
That's bad -- not just because Obama is putting politics ahead of principle, but because he's calculating the politics wrong. As Feingold proved when he was overwhelmingly re-elected in a swing state in 2004, after casting the sole vote against the Patriot Act, standing strong for the Bill of Rights attracts rather than sacrifices votes.
Even worse is the deceptive claim that the "compromise" on FISA (Foreign Intelligence Surveillance Act) reached by the Bush administration and congressional leaders allows for meaningful scrutiny.
As Feingold says, "The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the president's illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity."
Despite what some apologists for this sellout by Democratic leaders might suggest, it is comic to claim that multinational corporations given civil immunity might still face criminal charges.
Citizens have always been in the forefront of tackling corporate crime. At best, prosecutors play catch-up. Providing telecommunications corporations with immunity from civil suits gives them blanket immunity. To suggest otherwise is to buy into a fantasy that would make America less free and less safe.
Russ Feingold knows that. So does Barack Obama.
It is unfortunate that they are not standing together on the right side of history -- and the Constitution.
"Before the February 19 Wisconsin primary, which confirmed his front-runner status in the race for the Democratic presidential nomination, Illinois Senator Barack Obama went out of his way to associate his candidacy with the name of Wisconsin Senator Russ Feingold.
It wasn't just about winning Wisconsin, although that undoubtedly was part of the calculus.
Obama wanted to secure the support of the substantial portion of Democrats nationally who, in polls conducted in 2006, indicated that they would back Feingold if he entered the presidential race. Internal polls by the various campaigns indicated that Feingold drew as much as 15 percent of the vote in a number of key states, coming mostly from anti-war and pro-civil liberties progressives.
Obama knew he needed the support of those highly engaged party activists. And so, in early February, he embraced an issue that mattered a lot to them: the defense of civil liberties.
Obama, Feingold and Connecticut Senator Chris Dodd did not want Congress to support the Bush administration's efforts to block civil suits against telecommunications firms for spying on customers.
"I am proud to stand with Senator Dodd, Senator Feingold and a grass-roots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty," declared Obama, who indicated that he would support efforts to filibuster any attack on the ability of citizens to use the courts to defend their privacy rights.
Obama's stance helped him. It was cited in endorsements by prominent progressives and newspapers in Wisconsin and other later primary states. No doubt, it contributed to his landslide victory in the Badger State, where the Illinoisan won a vote from Feingold himself.
Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he'll vote for a White House-backed FISA rewrite -- which is likely to be taken up by the Senate this week -- in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.
That's bad -- not just because Obama is putting politics ahead of principle, but because he's calculating the politics wrong. As Feingold proved when he was overwhelmingly re-elected in a swing state in 2004, after casting the sole vote against the Patriot Act, standing strong for the Bill of Rights attracts rather than sacrifices votes.
Even worse is the deceptive claim that the "compromise" on FISA (Foreign Intelligence Surveillance Act) reached by the Bush administration and congressional leaders allows for meaningful scrutiny.
As Feingold says, "The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the president's illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity."
Despite what some apologists for this sellout by Democratic leaders might suggest, it is comic to claim that multinational corporations given civil immunity might still face criminal charges.
Citizens have always been in the forefront of tackling corporate crime. At best, prosecutors play catch-up. Providing telecommunications corporations with immunity from civil suits gives them blanket immunity. To suggest otherwise is to buy into a fantasy that would make America less free and less safe.
Russ Feingold knows that. So does Barack Obama.
It is unfortunate that they are not standing together on the right side of history -- and the Constitution.
Saturday, July 5, 2008
Obama's Support on Telcom Immunity & Why it Matters
From Glenn Greenwald in Salon.com on July 5, 2008: "Nancy Soderberg was deputy national security advisor and an ambassador to the United Nations in the Clinton administration. Today, she has an Op-Ed in the Los Angeles Times defending the FISA bill and telecom amnesty. The entire Op-Ed is just a regurgitation of the same trite, vague talking points which the political elite are using to justify this bill, accompanied by the standard invocations of "National Security" which our Foreign Policy elite condescendingly toss around to justify whatever policy they're claiming is necessary to protect us. But it's the language that she uses -- and the brazeness of the lying (and that's what it is) to justify this bill -- that's notable here.
It's notable because the political establishment is not only about to pass a patently corrupt bill, but worse, are spouting -- on a very bipartisan basis -- completely deceitful claims to obscure what they're really doing. This is what Soderberg says is what happened:
The Senate is dragging its feet because the compromise bill's opponents -- mostly Democrats -- want also to punish the telecommunications companies that answered President Bush's order for help with his illegal, warrantless wiretapping program. That is the wrong target.
In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration's effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration's written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful."
We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power.
I would really like to know where people like Soderberg get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law, as even she admits happened here. I'm asking this literally: how did this warped and distinctly un-American mentality get implanted into our public discourse -- that the President can give "orders" to private citizens that must be complied with? Soderberg views the President as a monarch -- someone who can issue "orders" that must be obeyed, even when, as she acknowledges, the "orders" are illegal.
That just isn't how our country works and it never was. We don't have a King who can order people to break the law. I have no doubt that people like Nancy Soderberg are spending the July 4 weekend paying shallow homage to the Founding, all the while being completely ignorant of or indifferent to the principles they pretend to celebrate. Just compare her claim that telecoms were justified, even required, to comply with the President's "order" to break the law with Thomas Paine's view, set forth in his 1776 revolutionary pamphlet Common Sense concerning how our country was supposed to work:
But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.
Nancy Soderberg and the rest of our political establishment about to immunize telecoms for having broken the law simply don't believe in those principles. And they're saying so explicitly. To them, the President's order to break the law both should and must be obeyed. Where did they learn that?
So much of this comes from the constant fetishizing of the President as the Supreme Leader, "our" Commander-in-Chief, rather than -- as the Constitution explicitly states -- "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." In the U.S., private actors don't have government "commanders" who can "order" or "direct" them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg -- in tandem with the rest of the political establishment -- claiming that private telecoms were justified, even compelled, to obey unlawful "orders" from the President, and are therefore entitled to be immunized from consequences.
Beyond that, her mentality reveals a profound ignorance of privacy laws and the history of spying abuses in the this country. Soderberg repeats the standard Democratic excuse for immunizing telecoms -- that telecoms are "the wrong target" because "the government should be held responsible, not private industry," and thus, "the companies that followed those directives are not the ones to blame for that abuse of presidential power."
This is all based on the false claim that privacy laws such as FISA were meant to restrict Government conduct, not those of telecoms. The exact opposite is true. FISA and other laws which the telecoms broke -- not just after 9/11, but for many years -- were written specifically to restrain how telecoms cooperate with Government spying requests. As Cindy Cohn, lead counsel for Electronic Frontier Foundation, explained when I interviewed her last October:
We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.
So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.
As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.
So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.
Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren't only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That's why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here.
* * * * *
Nancy Soderberg shouldn't be singled out. She's just disseminating the settled-upon talking points of the Democratic establishment and media elite in justifying this bill -- the same basic ones that pervade the manipulative and at times misleading statement issued by Barack Obama on Friday. She's speaking from the same script. But Soderberg's formulation is particularly artless and she thus advances statements which are just inexcusably false, so flagrantly and knowingly false that they're just offensive to read. She writes:
But what's most objectionable to some Democrats is a provision that provides telecommunications companies accused of past wrongdoing the right to have their cases reviewed in district court.
As everyone acknowledges, this bill effectively compels the district courts to dismiss the lawsuits against telecoms without any examination of whether the law was broken. Yet, in praising this bill, she says the bill gives telecoms "the right to have their cases reviewed in district court" -- as though they're being denied that "right" now, and as though the bill restores that right. Is it even possible to describe telecom immunity more dishonestly, with more Orwellian deceit, than that?
Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it's necessary.
Under the law -- both the current FISA and the new bill -- telecoms are legally required to comply with lawful requests from the Government. They don't have the option to "refuse to cooperate." What she's actually saying here is indescribably Orwellian -- that telecoms had the obligation to obey Bush's illegal orders to allow government spying, but they have the option to ignore legal warrants to do so. That's exactly backwards -- there is no danger that telecoms will "refuse to cooperate" because they are required to do so when the government requests are legal.
Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution.
What she snidely dismisses as "lawyer-like caution" exercised on "a case-by-case basis" is called "obeying the law." That's what we want people to do; that's the whole purpose of law.
The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions.
The reason the President broke the law was because he claimed that he has the power under Article II to ignore Congressional statutes restricting eavesdropping. He still claims that power, and this law does nothing to address that. It does the opposite: by putting an end to the pending lawsuits against the telecoms, it ensures that this Article II theory of presidential omnipotence will continue undisturbed -- both for the current President and for the next ones. To assert that this law does anything meaningful to address the Bush/Addington/Yoo theory of presidential lawbreaking that gave rise to this scandal is simply false. It blocks the only avenue for adjudicating the central cause of presidential lawbreaking, thus ensuring its continuation.
The compromise bill satisfies both sides: Under congressional oversight, it puts the responsibility for past surveillance squarely on the administration, where it belongs, and allows the courts to determine the legality of these actions.
This is the most flagrantly dishonest claim she makes, which is really saying something. The bill does the exact opposite of what she claims. It does not "allow[] the courts to determine the legality of these actions." It bars the courts from doing so in the case of telecoms, while ensuring that the Bush administration remains protected from judicial review by all sorts of procedural obstacles such as "standing" and "state secrets" that Congress is choosing to do nothing to address.
The bill thus ensures that what Soderberg admits is lawbreaking by both the Government and telecoms will never be addressed or resolved by a court of law. It shields the lawbreakers from accountability in court. That's its whole purpose. She has to know that, and yet here she is, telling people that this bill is a just and good policy because it "allows the courts to determine the legality of these actions." Can anyone coherently deny that it's outright lying to claim that this bill "allows the courts to determine the legality of these actions" when it does the exact opposite?
* * * * *
What all of this is really about -- the reason why political elites like Nancy Soderberg are so eager to defend it -- is because they really do believe that lawbreaking isn't wrong, that it doesn't deserve punishment, when engaged in by them rather than by commoners. People who defend telecom immunity or who say that it's not a big deal are, by logical necessity, adopting this view: "Our highest political officials and largest corporations shouldn't face consequences when they break our laws as long as they claim it was for our own good." That's the destructive premise that lies at the heart of this deeply corrupt measure, the reason it matters so much. Just like the pardon of Nixon, the protection of Iran-contra criminals, and the commutation of Lewis Libby's sentence, this bill is yet another step in cementing a two-tiered system of justice in America where our highest political officials and connected elite can break our laws with impunity.
Protecting government and corporate elite from flagrant lawbreaking is what our own political establishment always claimed was the hallmark of third-world, under-developed tyrannies. This 1998 essay by Thomas Carothers of the Carnegie Endowment for International Peace -- in the ultimate establishment organ, Foreign Affairs -- was entitled "The Rule of Law Revival," and argues optimistically that the "rule of law" has now become the centerpiece, the prime consensus, for most international relations and has been recognized as the linchpin for third-world countries developing into functioning democracies. It speaks for itself in terms of what the Nancy Soderbergs, Jay Rockefellers, Fred Hiatts, Dick Cheneys and all their establishment comrades are doing to our country by acting to cover-up the single most flagrant act of Bush lawbreaking and immunizing the key lawbreakers:
LEGAL BEDROCK
THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding. . . .
The primary obstacles to such reform [in the Third World] are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. . . .
Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.
Our Congress, with the political and media elite cheering, is about to violate every one of these principles. They are taking away from the judiciary the power to adjudicate allegations of lawbreaking. They are creating a two-tiered system of justice in which our most powerful corporations can break the law with impunity and government officials remain immune from consequences. And they are, in unity, spewing rank propaganda to the commoners -- who continue to be subjected to the harsh punishment for violations of the law and one of the world's most merciless justice systems -- in order to convince them that granting license to our political and corporate elites to break the law is necessary for their own Good and for their Safety.
Following numerous requests from those who contributed to our campaign against those responsible for this FISA and telecom amnesty travesty, we are in the process of preparing a full-page ad -- highlighting how false are the claims being made to justify this bill and the reasons it is so corrupt -- to run this week in The Washington Post (assuming it is accepted) and other similar venues.
"
It's notable because the political establishment is not only about to pass a patently corrupt bill, but worse, are spouting -- on a very bipartisan basis -- completely deceitful claims to obscure what they're really doing. This is what Soderberg says is what happened:
The Senate is dragging its feet because the compromise bill's opponents -- mostly Democrats -- want also to punish the telecommunications companies that answered President Bush's order for help with his illegal, warrantless wiretapping program. That is the wrong target.
In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration's effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration's written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful."
We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power.
I would really like to know where people like Soderberg get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law, as even she admits happened here. I'm asking this literally: how did this warped and distinctly un-American mentality get implanted into our public discourse -- that the President can give "orders" to private citizens that must be complied with? Soderberg views the President as a monarch -- someone who can issue "orders" that must be obeyed, even when, as she acknowledges, the "orders" are illegal.
That just isn't how our country works and it never was. We don't have a King who can order people to break the law. I have no doubt that people like Nancy Soderberg are spending the July 4 weekend paying shallow homage to the Founding, all the while being completely ignorant of or indifferent to the principles they pretend to celebrate. Just compare her claim that telecoms were justified, even required, to comply with the President's "order" to break the law with Thomas Paine's view, set forth in his 1776 revolutionary pamphlet Common Sense concerning how our country was supposed to work:
But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.
Nancy Soderberg and the rest of our political establishment about to immunize telecoms for having broken the law simply don't believe in those principles. And they're saying so explicitly. To them, the President's order to break the law both should and must be obeyed. Where did they learn that?
So much of this comes from the constant fetishizing of the President as the Supreme Leader, "our" Commander-in-Chief, rather than -- as the Constitution explicitly states -- "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." In the U.S., private actors don't have government "commanders" who can "order" or "direct" them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg -- in tandem with the rest of the political establishment -- claiming that private telecoms were justified, even compelled, to obey unlawful "orders" from the President, and are therefore entitled to be immunized from consequences.
Beyond that, her mentality reveals a profound ignorance of privacy laws and the history of spying abuses in the this country. Soderberg repeats the standard Democratic excuse for immunizing telecoms -- that telecoms are "the wrong target" because "the government should be held responsible, not private industry," and thus, "the companies that followed those directives are not the ones to blame for that abuse of presidential power."
This is all based on the false claim that privacy laws such as FISA were meant to restrict Government conduct, not those of telecoms. The exact opposite is true. FISA and other laws which the telecoms broke -- not just after 9/11, but for many years -- were written specifically to restrain how telecoms cooperate with Government spying requests. As Cindy Cohn, lead counsel for Electronic Frontier Foundation, explained when I interviewed her last October:
We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.
So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.
As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.
So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.
Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren't only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That's why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here.
* * * * *
Nancy Soderberg shouldn't be singled out. She's just disseminating the settled-upon talking points of the Democratic establishment and media elite in justifying this bill -- the same basic ones that pervade the manipulative and at times misleading statement issued by Barack Obama on Friday. She's speaking from the same script. But Soderberg's formulation is particularly artless and she thus advances statements which are just inexcusably false, so flagrantly and knowingly false that they're just offensive to read. She writes:
But what's most objectionable to some Democrats is a provision that provides telecommunications companies accused of past wrongdoing the right to have their cases reviewed in district court.
As everyone acknowledges, this bill effectively compels the district courts to dismiss the lawsuits against telecoms without any examination of whether the law was broken. Yet, in praising this bill, she says the bill gives telecoms "the right to have their cases reviewed in district court" -- as though they're being denied that "right" now, and as though the bill restores that right. Is it even possible to describe telecom immunity more dishonestly, with more Orwellian deceit, than that?
Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it's necessary.
Under the law -- both the current FISA and the new bill -- telecoms are legally required to comply with lawful requests from the Government. They don't have the option to "refuse to cooperate." What she's actually saying here is indescribably Orwellian -- that telecoms had the obligation to obey Bush's illegal orders to allow government spying, but they have the option to ignore legal warrants to do so. That's exactly backwards -- there is no danger that telecoms will "refuse to cooperate" because they are required to do so when the government requests are legal.
Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution.
What she snidely dismisses as "lawyer-like caution" exercised on "a case-by-case basis" is called "obeying the law." That's what we want people to do; that's the whole purpose of law.
The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions.
The reason the President broke the law was because he claimed that he has the power under Article II to ignore Congressional statutes restricting eavesdropping. He still claims that power, and this law does nothing to address that. It does the opposite: by putting an end to the pending lawsuits against the telecoms, it ensures that this Article II theory of presidential omnipotence will continue undisturbed -- both for the current President and for the next ones. To assert that this law does anything meaningful to address the Bush/Addington/Yoo theory of presidential lawbreaking that gave rise to this scandal is simply false. It blocks the only avenue for adjudicating the central cause of presidential lawbreaking, thus ensuring its continuation.
The compromise bill satisfies both sides: Under congressional oversight, it puts the responsibility for past surveillance squarely on the administration, where it belongs, and allows the courts to determine the legality of these actions.
This is the most flagrantly dishonest claim she makes, which is really saying something. The bill does the exact opposite of what she claims. It does not "allow[] the courts to determine the legality of these actions." It bars the courts from doing so in the case of telecoms, while ensuring that the Bush administration remains protected from judicial review by all sorts of procedural obstacles such as "standing" and "state secrets" that Congress is choosing to do nothing to address.
The bill thus ensures that what Soderberg admits is lawbreaking by both the Government and telecoms will never be addressed or resolved by a court of law. It shields the lawbreakers from accountability in court. That's its whole purpose. She has to know that, and yet here she is, telling people that this bill is a just and good policy because it "allows the courts to determine the legality of these actions." Can anyone coherently deny that it's outright lying to claim that this bill "allows the courts to determine the legality of these actions" when it does the exact opposite?
* * * * *
What all of this is really about -- the reason why political elites like Nancy Soderberg are so eager to defend it -- is because they really do believe that lawbreaking isn't wrong, that it doesn't deserve punishment, when engaged in by them rather than by commoners. People who defend telecom immunity or who say that it's not a big deal are, by logical necessity, adopting this view: "Our highest political officials and largest corporations shouldn't face consequences when they break our laws as long as they claim it was for our own good." That's the destructive premise that lies at the heart of this deeply corrupt measure, the reason it matters so much. Just like the pardon of Nixon, the protection of Iran-contra criminals, and the commutation of Lewis Libby's sentence, this bill is yet another step in cementing a two-tiered system of justice in America where our highest political officials and connected elite can break our laws with impunity.
Protecting government and corporate elite from flagrant lawbreaking is what our own political establishment always claimed was the hallmark of third-world, under-developed tyrannies. This 1998 essay by Thomas Carothers of the Carnegie Endowment for International Peace -- in the ultimate establishment organ, Foreign Affairs -- was entitled "The Rule of Law Revival," and argues optimistically that the "rule of law" has now become the centerpiece, the prime consensus, for most international relations and has been recognized as the linchpin for third-world countries developing into functioning democracies. It speaks for itself in terms of what the Nancy Soderbergs, Jay Rockefellers, Fred Hiatts, Dick Cheneys and all their establishment comrades are doing to our country by acting to cover-up the single most flagrant act of Bush lawbreaking and immunizing the key lawbreakers:
LEGAL BEDROCK
THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding. . . .
The primary obstacles to such reform [in the Third World] are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. . . .
Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.
Our Congress, with the political and media elite cheering, is about to violate every one of these principles. They are taking away from the judiciary the power to adjudicate allegations of lawbreaking. They are creating a two-tiered system of justice in which our most powerful corporations can break the law with impunity and government officials remain immune from consequences. And they are, in unity, spewing rank propaganda to the commoners -- who continue to be subjected to the harsh punishment for violations of the law and one of the world's most merciless justice systems -- in order to convince them that granting license to our political and corporate elites to break the law is necessary for their own Good and for their Safety.
Following numerous requests from those who contributed to our campaign against those responsible for this FISA and telecom amnesty travesty, we are in the process of preparing a full-page ad -- highlighting how false are the claims being made to justify this bill and the reasons it is so corrupt -- to run this week in The Washington Post (assuming it is accepted) and other similar venues.
"
Friday, July 4, 2008
Obama's New Statement on His Support of FISA Bill
From Glenn Greenwald in utdocuments.blogspot.com on July 3, 2008: "Barack Obama has issued a new statement on FISA in response to the growing number of his supporters objecting to his position. Genuine credit to him for being responsive this way and for having his site be a forum for disagreement among his supporters and himself. Providing a forum for those sorts of debates is a sign of a secure and healthy campaign.
Despite that, the statement contains many dubious claims and, in a couple cases, outright misleading statements. Worse, Obama's statement only addressed the objections to the telecom immunity provisions of the bill, while ignoring the objections to the (at least) equally pernicious new warrantless eavesdropping powers the bill authorizes. Taking Obama's claims in order:
It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That's why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.
Obama says he will vote to remove immunity from the bill, but he knows full well that this effort will fail and that the final bill will have telecom immunity in it. The bottom line is that he will nonetheless end up voting for this bill with immunity in it even though he previously vowed to support a filibuster of "any bill" that contains retroactive immunity. Put another way, Obama claims he opposes telecom immunity but will vote for a bill that grants it.
But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year.
Whether it's better than the Protect America Act (PAA) is irrelevant. The PAA already expired last February. If the new FISA bill is rejected, we don't revert back to the Protect America Act. We just continue to live under the same FISA law that we've lived under for 30 years (with numerous post-9/11 modernizing amendments). So whether this bill is a mild improvement over the atrocious, expired PAA is not even a coherent reason to support it, let alone a persuasive one.
The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court.
The current FISA law -- as a federal court ruled just yesterday -- already has the same exclusivity provision, and it did nothing to stop the President and the telecoms from breaking the law anyway. The fact that Obama is now going to vote to end the telecom lawsuits and immunize the lawbreakers means that there will be no consequences for their having broken the law. How can Obama possibly claim that the "exclusivity" provision in the new FISA bill has value when the current law that they broke already has the same provision?
As I wrote today:
They're presenting as a "gift" something you already have, and telling you that you should give up critical protections in exchange for receiving something that you already have -- namely, a requirement that the President comply with eavesdropping laws. What they're doing is tantamount to someone who steals your wallet, takes all the money out, gives the empty wallet back to you, and then tells you that you should be grateful to them because you have your wallet.
Exclusivity is obviously no reason to change the current FISA law since it already has exclusivity in it. Obama:
In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people.
The government already has "the authority to collect the intelligence it needs to protect the American people." That authority is called FISA, which already allows the Government extremely broad authority to spy on any suspected terrorists. The current law results in virtually no denials of any spying requests. So how can Obama -- echoing the Bush administration -- claim a new law is needed to provide "the authority to collect the intelligence we need to protect the American people" when the current FISA law already provides that?
But in a free society, that authority cannot be unlimited. As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.
This is just false. The new FISA bill that Obama supports vests new categories of warrantless eavesdropping powers in the President (.pdf), and allows the Government, for the first time, to tap physically into U.S. telecommunications networks inside our country with no individual warrant requirement. To claim that this new bill creates "an independent monitor [to] watch the watchers to prevent abuses and to protect the civil liberties of the American people" is truly misleading, since the new FISA bill actually does the opposite -- it frees the Government from exactly that monitoring in all sorts of broad categories.
Why else would Bush and Cheney be so eager to have this bill if it didn't substantially expand the Government's ability to eavesdrop without warrants?
The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation (PDF) uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.
Having the Executive Branch investigate itself for alleged lawbreaking is not "oversight." In our system of Government, government officials and corporations which are accused of breaking the law are subjected to courts of law -- just like everyone else -- not to "investigations" by agencies within their own branches of government with very limited powers. Marcy Wheeler has more on the extremely limited capacity of Inspectors General to investigate lawbreaking at high levels of government.
The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise.
This is the most misleading part of Obama's statement. The "certain surveillance orders [which] will begin to expire later this summer" -- that Obama claims we must maintain -- are warrantless eavesdropping orders that were authorized by the PAA, which Obama voted against last August. As I asked the other day:
Had Obama had his way, there never would have been any PAA in the first place, and therefore, there never would have been any PAA orders possible. Having voted against the PAA last August, how can Obama now claim that he considers it important that the PAA orders not expire? How can he be eager to avoid the expiration of surveillance orders which he opposed authorizing in the first place?
Moreover, the Government already has "the ability to monitor and track individuals who want to attack the United States" under the current FISA law. Citing the need for such monitoring in order to justify this new FISA bill is just pure fear-mongering ("you better let us eliminate FISA protections if you want us to keep you safe from the Terrorists"). Obama has always said in the past that "the FISA court works." When did he change his mind and why?
I do so with the firm intention -- once I'm sworn in as president -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.
This expression of Obama's "intention" has so many equivocations and vague claims as to be worthless. In a society that lives under the rule of law, government officials and corporations which break our laws are held accountable by courts of law, not by vague promises from politicians of some future "review" and "recommendation" process grounded in claims that we can trust the Leader to do the right thing, whatever he decides in his sole discretion and infinite wisdom that might be. That is no consolation for blocking courts from adjudicating whether laws were broken here, which is what the bill that Obama supports will do."
Despite that, the statement contains many dubious claims and, in a couple cases, outright misleading statements. Worse, Obama's statement only addressed the objections to the telecom immunity provisions of the bill, while ignoring the objections to the (at least) equally pernicious new warrantless eavesdropping powers the bill authorizes. Taking Obama's claims in order:
It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That's why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.
Obama says he will vote to remove immunity from the bill, but he knows full well that this effort will fail and that the final bill will have telecom immunity in it. The bottom line is that he will nonetheless end up voting for this bill with immunity in it even though he previously vowed to support a filibuster of "any bill" that contains retroactive immunity. Put another way, Obama claims he opposes telecom immunity but will vote for a bill that grants it.
But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year.
Whether it's better than the Protect America Act (PAA) is irrelevant. The PAA already expired last February. If the new FISA bill is rejected, we don't revert back to the Protect America Act. We just continue to live under the same FISA law that we've lived under for 30 years (with numerous post-9/11 modernizing amendments). So whether this bill is a mild improvement over the atrocious, expired PAA is not even a coherent reason to support it, let alone a persuasive one.
The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court.
The current FISA law -- as a federal court ruled just yesterday -- already has the same exclusivity provision, and it did nothing to stop the President and the telecoms from breaking the law anyway. The fact that Obama is now going to vote to end the telecom lawsuits and immunize the lawbreakers means that there will be no consequences for their having broken the law. How can Obama possibly claim that the "exclusivity" provision in the new FISA bill has value when the current law that they broke already has the same provision?
As I wrote today:
They're presenting as a "gift" something you already have, and telling you that you should give up critical protections in exchange for receiving something that you already have -- namely, a requirement that the President comply with eavesdropping laws. What they're doing is tantamount to someone who steals your wallet, takes all the money out, gives the empty wallet back to you, and then tells you that you should be grateful to them because you have your wallet.
Exclusivity is obviously no reason to change the current FISA law since it already has exclusivity in it. Obama:
In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people.
The government already has "the authority to collect the intelligence it needs to protect the American people." That authority is called FISA, which already allows the Government extremely broad authority to spy on any suspected terrorists. The current law results in virtually no denials of any spying requests. So how can Obama -- echoing the Bush administration -- claim a new law is needed to provide "the authority to collect the intelligence we need to protect the American people" when the current FISA law already provides that?
But in a free society, that authority cannot be unlimited. As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.
This is just false. The new FISA bill that Obama supports vests new categories of warrantless eavesdropping powers in the President (.pdf), and allows the Government, for the first time, to tap physically into U.S. telecommunications networks inside our country with no individual warrant requirement. To claim that this new bill creates "an independent monitor [to] watch the watchers to prevent abuses and to protect the civil liberties of the American people" is truly misleading, since the new FISA bill actually does the opposite -- it frees the Government from exactly that monitoring in all sorts of broad categories.
Why else would Bush and Cheney be so eager to have this bill if it didn't substantially expand the Government's ability to eavesdrop without warrants?
The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation (PDF) uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.
Having the Executive Branch investigate itself for alleged lawbreaking is not "oversight." In our system of Government, government officials and corporations which are accused of breaking the law are subjected to courts of law -- just like everyone else -- not to "investigations" by agencies within their own branches of government with very limited powers. Marcy Wheeler has more on the extremely limited capacity of Inspectors General to investigate lawbreaking at high levels of government.
The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise.
This is the most misleading part of Obama's statement. The "certain surveillance orders [which] will begin to expire later this summer" -- that Obama claims we must maintain -- are warrantless eavesdropping orders that were authorized by the PAA, which Obama voted against last August. As I asked the other day:
Had Obama had his way, there never would have been any PAA in the first place, and therefore, there never would have been any PAA orders possible. Having voted against the PAA last August, how can Obama now claim that he considers it important that the PAA orders not expire? How can he be eager to avoid the expiration of surveillance orders which he opposed authorizing in the first place?
Moreover, the Government already has "the ability to monitor and track individuals who want to attack the United States" under the current FISA law. Citing the need for such monitoring in order to justify this new FISA bill is just pure fear-mongering ("you better let us eliminate FISA protections if you want us to keep you safe from the Terrorists"). Obama has always said in the past that "the FISA court works." When did he change his mind and why?
I do so with the firm intention -- once I'm sworn in as president -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.
This expression of Obama's "intention" has so many equivocations and vague claims as to be worthless. In a society that lives under the rule of law, government officials and corporations which break our laws are held accountable by courts of law, not by vague promises from politicians of some future "review" and "recommendation" process grounded in claims that we can trust the Leader to do the right thing, whatever he decides in his sole discretion and infinite wisdom that might be. That is no consolation for blocking courts from adjudicating whether laws were broken here, which is what the bill that Obama supports will do."
NYT: New & Not Improved Obama
From NYT on July 4, 2008: "Senator Barack Obama stirred his legions of supporters, and raised our hopes, promising to change the old order of things. He spoke with passion about breaking out of the partisan mold of bickering and catering to special pleaders, promised to end President Bush’s abuses of power and subverting of the Constitution and disowned the big-money power brokers who have corrupted Washington politics.
Now there seems to be a new Barack Obama on the hustings. First, he broke his promise to try to keep both major parties within public-financing limits for the general election. His team explained that, saying he had a grass-roots-based model and that while he was forgoing public money, he also was eschewing gold-plated fund-raisers. These days he’s on a high-roller hunt.
Even his own chief money collector, Penny Pritzker, suggests that the magic of $20 donations from the Web was less a matter of principle than of scheduling. “We have not been able to have much of the senator’s time during the primaries, so we have had to rely more on the Internet,” she explained as she and her team busily scheduled more than a dozen big-ticket events over the next few weeks at which the target price for quality time with the candidate is more than $30,000 per person.
The new Barack Obama has abandoned his vow to filibuster an electronic wiretapping bill if it includes an immunity clause for telecommunications companies that amounts to a sanctioned cover-up of Mr. Bush’s unlawful eavesdropping after 9/11.
In January, when he was battling for Super Tuesday votes, Mr. Obama said that the 1978 law requiring warrants for wiretapping, and the special court it created, worked. “We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight and do not undermine the very laws and freedom that we are fighting to defend,” he declared.
Now, he supports the immunity clause as part of what he calls a compromise but actually is a classic, cynical Washington deal that erodes the power of the special court, virtually eliminates “vigorous oversight” and allows more warrantless eavesdropping than ever.
The Barack Obama of the primary season used to brag that he would stand before interest groups and tell them tough truths. The new Mr. Obama tells evangelical Christians that he wants to expand President Bush’s policy of funneling public money for social spending to religious-based organizations — a policy that violates the separation of church and state and turns a government function into a charitable donation.
He says he would not allow those groups to discriminate in employment, as Mr. Bush did, which is nice. But the Constitution exists to protect democracy, no matter who is president and how good his intentions may be.
On top of these perplexing shifts in position, we find ourselves disagreeing powerfully with Mr. Obama on two other issues: the death penalty and gun control.
Mr. Obama endorsed the Supreme Court’s decision to overturn the District of Columbia’s gun-control law. We knew he ascribed to the anti-gun-control groups’ misreading of the Constitution as implying an individual right to bear arms. But it was distressing to see him declare that the court provided a guide to “reasonable regulations enacted by local communities to keep their streets safe.”
What could be more reasonable than a city restricting handguns, or requiring that firearms be stored in ways that do not present a mortal threat to children?
We were equally distressed by Mr. Obama’s criticism of the Supreme Court’s barring the death penalty for crimes that do not involve murder.
We are not shocked when a candidate moves to the center for the general election. But Mr. Obama’s shifts are striking because he was the candidate who proposed to change the face of politics, the man of passionate convictions who did not play old political games.
There are still vital differences between Mr. Obama and Senator John McCain on issues like the war in Iraq, taxes, health care and Supreme Court nominations. We don’t want any “redefining” on these big questions. This country needs change it can believe in. "
Now there seems to be a new Barack Obama on the hustings. First, he broke his promise to try to keep both major parties within public-financing limits for the general election. His team explained that, saying he had a grass-roots-based model and that while he was forgoing public money, he also was eschewing gold-plated fund-raisers. These days he’s on a high-roller hunt.
Even his own chief money collector, Penny Pritzker, suggests that the magic of $20 donations from the Web was less a matter of principle than of scheduling. “We have not been able to have much of the senator’s time during the primaries, so we have had to rely more on the Internet,” she explained as she and her team busily scheduled more than a dozen big-ticket events over the next few weeks at which the target price for quality time with the candidate is more than $30,000 per person.
The new Barack Obama has abandoned his vow to filibuster an electronic wiretapping bill if it includes an immunity clause for telecommunications companies that amounts to a sanctioned cover-up of Mr. Bush’s unlawful eavesdropping after 9/11.
In January, when he was battling for Super Tuesday votes, Mr. Obama said that the 1978 law requiring warrants for wiretapping, and the special court it created, worked. “We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight and do not undermine the very laws and freedom that we are fighting to defend,” he declared.
Now, he supports the immunity clause as part of what he calls a compromise but actually is a classic, cynical Washington deal that erodes the power of the special court, virtually eliminates “vigorous oversight” and allows more warrantless eavesdropping than ever.
The Barack Obama of the primary season used to brag that he would stand before interest groups and tell them tough truths. The new Mr. Obama tells evangelical Christians that he wants to expand President Bush’s policy of funneling public money for social spending to religious-based organizations — a policy that violates the separation of church and state and turns a government function into a charitable donation.
He says he would not allow those groups to discriminate in employment, as Mr. Bush did, which is nice. But the Constitution exists to protect democracy, no matter who is president and how good his intentions may be.
On top of these perplexing shifts in position, we find ourselves disagreeing powerfully with Mr. Obama on two other issues: the death penalty and gun control.
Mr. Obama endorsed the Supreme Court’s decision to overturn the District of Columbia’s gun-control law. We knew he ascribed to the anti-gun-control groups’ misreading of the Constitution as implying an individual right to bear arms. But it was distressing to see him declare that the court provided a guide to “reasonable regulations enacted by local communities to keep their streets safe.”
What could be more reasonable than a city restricting handguns, or requiring that firearms be stored in ways that do not present a mortal threat to children?
We were equally distressed by Mr. Obama’s criticism of the Supreme Court’s barring the death penalty for crimes that do not involve murder.
We are not shocked when a candidate moves to the center for the general election. But Mr. Obama’s shifts are striking because he was the candidate who proposed to change the face of politics, the man of passionate convictions who did not play old political games.
There are still vital differences between Mr. Obama and Senator John McCain on issues like the war in Iraq, taxes, health care and Supreme Court nominations. We don’t want any “redefining” on these big questions. This country needs change it can believe in. "
Wednesday, July 2, 2008
Obama Voters Protest His Switch on Telecom Immunity
From the NYT on July 2, 2008 By JAMES RISEN:
"WASHINGTON — Senator Barack Obama’s decision to support legislation granting legal immunity to telecommunications companies that cooperated with the Bush administration’s program of wiretapping without warrants has led to an intense backlash among some of his most ardent supporters.
Thousands of them are now using the same grass-roots organizing tools previously mastered by the Obama campaign to organize a protest against his decision.
In recent days, more than 7,000 Obama supporters have organized on a social networking site on Mr. Obama’s own campaign Web site. They are calling on Mr. Obama to reverse his decision to endorse legislation supported by President Bush to expand the government’s domestic spying powers while also providing legal protection to the telecommunication companies that worked with the National Security Agency’s domestic wiretapping program after the Sept. 11 attacks.
During the Democratic primary campaign, Mr. Obama vowed to fight such legislation to update the Foreign Intelligence Surveillance Act, or FISA. But he has switched positions, and now supports a compromise hammered out between the White House and the Democratic Congressional leadership. The bill is expected to come to a vote on the Senate floor next Tuesday. That decision, one of a number made by Mr. Obama in recent weeks intended to position him toward the political center as the general election campaign heats up, has brought him into serious conflict for the first time with liberal bloggers and commentators and his young supporters.
Many of them have seen the issue of granting immunity to the telecommunications companies as a test of principle in their opposition to Mr. Bush’s surveillance program.
“I don’t think there has been another instance where, in meaningful numbers, his supporters have opposed him like this,” said Glenn Greenwald, a Salon.com writer who opposes Mr. Obama’s new position. “For him to suddenly turn around and endorse this proposal is really a betrayal of what so many of his supporters believed he believed in.”
Jane Hamsher, a liberal blogger who also opposes immunity for the phone companies, said she had been flooded with messages from Obama supporters frustrated with his new stance.
“The opposition to Obama’s position among his supporters is very widespread,” said Ms. Hamsher, founder of the Web site firedoglake.com. “His promise to filibuster earlier in the year, and the decision to switch on that is seen as a real character problem. I know people who are really very big Obama supporters are very disillusioned.”
One supporter, Robert Arellano, expressed his anger on the Obama site.
“I have watched your campaign with genuine enthusiasm,” Mr. Arellano wrote, “and I have given you money. For the first time in my life, I have sensed the presence of a presidential candidate who might actually bring some meaningful change to the corrupt cesspool of national politics. But your about-face on the FISA bill genuinely angers and alarms me.”
For now, the campaign is trying to put a positive spin on the new FISA fight among its supporters.
“The fact that there is an open forum on BarackObama.com where supporters can say whether they agree or disagree speaks to a strength of our campaign,” said Bill Burton, a campaign spokesman.
Several activists and bloggers predicted that Mr. Obama’s move toward the center on some issues could sharply reduce the intensity of support he has enjoyed from liberal activists. Such enthusiasm helped power his effort to secure the Democratic nomination, and it has been one of his campaign’s most important tools for fund-raising and organizing around the country.
Markos Moulitsas, a liberal blogger and founder of the Daily Kos Web site, said he had decided to cut back on the amount of money he would contribute to the Obama campaign because of the FISA reversal.
“I will continue to support him,” Mr. Moulitsas said in an interview. “But I was going to write him a check, and I decided I would rather put that money with Democrats who will uphold the Constitution.”
Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.
“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.”
"WASHINGTON — Senator Barack Obama’s decision to support legislation granting legal immunity to telecommunications companies that cooperated with the Bush administration’s program of wiretapping without warrants has led to an intense backlash among some of his most ardent supporters.
Thousands of them are now using the same grass-roots organizing tools previously mastered by the Obama campaign to organize a protest against his decision.
In recent days, more than 7,000 Obama supporters have organized on a social networking site on Mr. Obama’s own campaign Web site. They are calling on Mr. Obama to reverse his decision to endorse legislation supported by President Bush to expand the government’s domestic spying powers while also providing legal protection to the telecommunication companies that worked with the National Security Agency’s domestic wiretapping program after the Sept. 11 attacks.
During the Democratic primary campaign, Mr. Obama vowed to fight such legislation to update the Foreign Intelligence Surveillance Act, or FISA. But he has switched positions, and now supports a compromise hammered out between the White House and the Democratic Congressional leadership. The bill is expected to come to a vote on the Senate floor next Tuesday. That decision, one of a number made by Mr. Obama in recent weeks intended to position him toward the political center as the general election campaign heats up, has brought him into serious conflict for the first time with liberal bloggers and commentators and his young supporters.
Many of them have seen the issue of granting immunity to the telecommunications companies as a test of principle in their opposition to Mr. Bush’s surveillance program.
“I don’t think there has been another instance where, in meaningful numbers, his supporters have opposed him like this,” said Glenn Greenwald, a Salon.com writer who opposes Mr. Obama’s new position. “For him to suddenly turn around and endorse this proposal is really a betrayal of what so many of his supporters believed he believed in.”
Jane Hamsher, a liberal blogger who also opposes immunity for the phone companies, said she had been flooded with messages from Obama supporters frustrated with his new stance.
“The opposition to Obama’s position among his supporters is very widespread,” said Ms. Hamsher, founder of the Web site firedoglake.com. “His promise to filibuster earlier in the year, and the decision to switch on that is seen as a real character problem. I know people who are really very big Obama supporters are very disillusioned.”
One supporter, Robert Arellano, expressed his anger on the Obama site.
“I have watched your campaign with genuine enthusiasm,” Mr. Arellano wrote, “and I have given you money. For the first time in my life, I have sensed the presence of a presidential candidate who might actually bring some meaningful change to the corrupt cesspool of national politics. But your about-face on the FISA bill genuinely angers and alarms me.”
For now, the campaign is trying to put a positive spin on the new FISA fight among its supporters.
“The fact that there is an open forum on BarackObama.com where supporters can say whether they agree or disagree speaks to a strength of our campaign,” said Bill Burton, a campaign spokesman.
Several activists and bloggers predicted that Mr. Obama’s move toward the center on some issues could sharply reduce the intensity of support he has enjoyed from liberal activists. Such enthusiasm helped power his effort to secure the Democratic nomination, and it has been one of his campaign’s most important tools for fund-raising and organizing around the country.
Markos Moulitsas, a liberal blogger and founder of the Daily Kos Web site, said he had decided to cut back on the amount of money he would contribute to the Obama campaign because of the FISA reversal.
“I will continue to support him,” Mr. Moulitsas said in an interview. “But I was going to write him a check, and I decided I would rather put that money with Democrats who will uphold the Constitution.”
Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.
“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.”
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