Obama Backs FISA Cave

By Cernig

Here's Obama's statement, courtesy of TPM.

"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

"It is not all that I would want. But given 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."

He'll work  "to remove this provision" and promises going forward that there will be full accounatbility if only we turn Bush's spy apparatus over to him? That's not good enough. There are a lot of unhappy activists out there.

Greg Sargent:

To be clear, I'm not even talking about whether opposing this would or wouldn't have carried political peril. It really doesn't matter. Because if there were ever anything that would have tested his operating premise throughout this campaign -- that you can win arguments with Republicans about national security -- it was this legislation. If ever there were anything that deserved to test this premise, it was this legislation.

And this time, he abandoned that premise.

DDay at Hullabaloo:

"Work to remove" telecom immunity should be rewritten to "maybe show up to vote on some amendment that will surely be struck down and then whimper away." What a colossal failure of leadership.

Obama earns a Wanker of the Day from Atrios. And it's well-deserved. I thought he'd issue some vague statement of disapproval and then miss the vote. This endorsement of a X'ing out the Fourth Amendment is waaaay out of bounds.

John Amato at C & L wonders what happened to the Obama who was willing to fillibuster any immunity provision while Glenn Greenwald writes:

Telling Americans that we have to give up basic constitutional rights -- and allow rampant lawbreaking -- if we want to save ourselves from "the grave threats we face" sounds awfully familiar. He says he will work to remove amnesty from the bill, but once that fails, will vote for the "compromise." Obama has obviously calculated that sacrificing the rule of law and the Fourth Amendment is a worthwhile price to pay to bolster his standing a tiny bit in a couple of swing states.

Cernig at Newshoggers? If anyone asks (they won't), remind them that I said, repeatedly, that we all must keep asking the damn question: Will you, if elected, pledge to roll back the Bush vision of total Presidential executive power? To keep asking it over and over until each candidate was so committed to one answer that they couldn't back out of their answer without destroying their own credibility. And we didn't, and I too was fooled, because I wanted so badly to believe it could be different.

It's not. Obama (or Hillary, had she won the nomination) would still be better than the trainwreck continuation of the Bush years that McCain represents, but it's a difference of a small degree, not of kind.

No more fooling ourselves, eh?

Update: Jack Balkin:

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

It should now be clear why the Obama campaign has taken the position it has taken. And given what I have just said, Obama's supporters should be pressing him less on the immunity provisions and more on the first part of the bill which completely rewrites FISA. Because, if he becomes president, he'll be the one applying and enforcing its provisions.

If you really care about civil liberties in the National Surveillance State, you have to recognize that both parties will be constructing its institutions. The next President will be a major player in its construction, as important if not more important than George W. Bush ever was. That President will want more authority to engage in surveillance, and he'll be delighted for Congress to give it to him officially.

Comments

[Michael]

He can work effectively to get the retroactive immunity stripped in the Senate and demonstrate some fidelity to his own campaign promises and the Constitution, or he can fail his first real test of leadership. That simple.

[Steve Hynd]

Agreed, Michael.

[zenpundit]

"Will you, if elected, pledge to roll back the Bush vision of total Presidential executive power?"

Not exactly a standard that requires knowledge of any particular policy or thought, merely a twitchy knee. :)

A blanket return to pre-9/11 rules for the IC and DoD intel runs contrary to both American national security needs and most likely, a majority of what Americans would prefer the USG do.

Overreach is best handled by intelligently trimming back and not overreaching in the other direction. Spying on foreigners overseas is the primary reason for the IC's existence and the interference in SIGINT by the judicial branch should be minimal until an American citizen is involved as a primary target.

[1MaNLan]

Behold the audacity of bullshit. Thanks, Mr. O. Its been real. Actually, not.

Change I can believe in? The seventy-two cents in my pocket.

It is going to be a sad and painful election. "Tastes Great" versus "Less Filling".

[Mark]

I will hopefully post about this tomorrow, but Obama's cave-in on civil liberties issues like this, as well as his slow drift towards Republican Mideast policy, ought to give Democrat civil libertarians and foreign policy liberals (for lack of a better phrase) some pause. Frankly, there is a third choice this year whose entire campaign is primarily centered on civil liberties issues and a massive decrease of foreign intervention, and who is looking to play a significant role as a spoiler. No, not Ralph Nader, but rather a certain high-profile libertarian named Bob Barr.

I realize that most liberals/Progressive would have major disagreements with Barr on economic policy issues (though the differences between the economic policy preferences of modern liberal/Progressives and those of the Hayek faction of libertarianism are nowhere near as wide as many think), and will never forgive him for his role in the Clinton impeachment (FWIW, he thinks Bush is far, far worse than Clinton ever was). But as a liberal/civil libertarian protest vote against the sell-out of basic freedoms, a sizable vote for Barr from the liberal side of the equation would send a huge message to the Dem Party.

Yeah, this would increase the likelihood of a President McCain (although the better Barr does in polling, the more he is likely to take from McCain), But because Barr's campaign will be almost entirely focused on civil liberties/foreign policy issues, it would also send enough of a message to Congressional Democrats that their party risks losing a lot if they don't grow a backbone on basic civil liberties issues.

This is effectively what happened to the Republicans (though they only had control of one house of Congress) in 1992 with Ross Perot. Part of the reason the Republicans subsequently rebounded and why Perot didn't do nearly as well 1996 as he did 1992 was that Perot's 1992 campaign forced the Republicans to at least temporarily grow a backbone on budget deficits. As notably (for better or worse), Perot's success probably led to the Republican leadership becoming far more nativist on immigration issues - previously the Republican leadership was pretty well split on immigration. After Perot, Republican politicians became increasingly hard-line on immigration (most notably through the California Prop 187).

A lot of conservatives viewed the Republican politicians of the first Bush Administration in much the same way that liberals/Progressives view the Democratic politicians of the second Bush Administration. But I don't think there are many people, left or right, who would accuse the post-1992 Republican leadership of being too interested in "bipartisanship." That leadership in many ways came about as a Republican reaction to the Perot campaign.

I believe that if Bob Barr were to pull 10-15% of the vote, with about equal percentages coming from each of the major candidates, the Dems would be forced to grow a backbone on a wide variety of issues, but would still hold control of Congress. That makes the question for liberals/Progressives: would you rather have control of the executive and legislative branches but with at best minor improvements on civil liberties and foreign policy (and face a strong possibility of 1994 redux), or control of only the legislative branch but with the strong possibility of using that control to roll back the civil liberties and foreign policies of the Bush years, and beginning two years hence, have a coalition that includes one or two new, rather sizable, groups that are particularly committed to civil liberties and a less-aggressive foreign policy.

I'm sure that you will all think this is a completely insane suggestion on my part, which is why I will probably need to elaborate more fully this weekend. And Obama's deviation here is probably not enough of a major problem for many liberals/Progressives to withdraw their backing of him, especially with the memory of Ralph Nader 2000 still hanging around. Still, if Obama continues to offer up major disappointments on civil liberties and foreign policy issues, I would hope that his advantages over McCain (from a liberal/Progressive standpoint) on economic issues aren't enough to overcome the long-term advantages of a Dem Party that was actually committed to defending civil liberties.

[Dan]

Yesterday's "yes" votes are here, along with home page links.

[Steve Hynd]

Bernie Sanders voted nay. Still my favorite Senator. Can we draft him?

Regards, C

[Michael]

Cernic, how could Bernie Sanders have voted in the House?

[Michael]

Sorry for the typo, Cernig.

[Michael]

I'm proud that Barbara Lee is my representative.