Monday, June 23, 2008

Sigh...FISA...

The Democratic leadership in the House and Senate has set the stage for a spectacular cave in to the demands of the Bush Administration and Congressional Republicans. One looming question remains however, and that is how much or how forcefully will Barack Obama challenge the Democratic folding to Bush on the FISA and telecom immunity issue.

This issue, while not big amongst pundits as one of those issues polling data says Americans care about, represents two crucial tests for Obama and his campaign. First, there is the idea that Obama's campaign has promoted, that their candidate will break with the long-standing Democratic party tradition of backing down from any fight over national security issues with Republicans. Instead Obama is proposing to stand up to Republicans and not let them control the terms of the debate. Given his position on the FISA issue so far, its seems however that he's already given up the terms to Bush on this one. Secondly, will Obama continue another Democratic tradition and screw over or ignore its activist base? Since this issue isn't a big one and taking a tough aggressive stand on it doesn't seem to promise much fruitful rewards with those "hard-working" voters that Obama needs, will Obama then conserve his political capital for a fight which might be for a smaller principle, but offer far more profit? I'm sure Obama's campaign has already calculated this and decided that its not a fight which is worth it, and has already planned for their candidate to take a symbolic stand against this bill, and then vote for it.

Sigh...the general election has definitely begun, and so Obama has begun the process of selecting those segments of his coalition of supporters who can be crossed and dismissed, while still be counted on for their votes and money.

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From the Daily Kos:

Why Do We Care About FISA?
by Hunter
Sat Jun 21, 2008 at 06:45:10 PM PDT

So, why have activists spent so much effort opposing retroactive corporate immunity as part of new FISA legislation, when there are so many other things in the world to be outraged about? Why do so many people care so much about a mere technical issue such as whether such-and-such is legal or illegal?

I can count three reasons.

1. It goes to the heart of illegal actions by this administration. The Bush administration has broken law after law, and been enmeshed in scandal after scandal, and been met with no substantive actions. There are investigations that never end; there are stern letters that are never answered; there are subpoenas that are simply ignored. So to respond to a clearly illegal act by, of all possible things, writing legislation that offers retroactive immunity for those acts, maintains the secrecy of those acts, and declares that the Bush administration itself will be responsible for the future integrity of those acts -- it is patently asinine. It is an insult. It demonstrates a complete lack of regard for the law, and for the very responsibilities of each branch of government. In this, it is symbolic of the entire current Congress, which has proved itself all but nonfunctional when it comes to checking abuses by the executive branch -- or even by their own branch.

2. It is a Constitutional question, and of a sort that the administration has fought long and hard to cripple. Among the more basic premises of the Bill of Rights is the notion of probable cause; your government may not conduct searches or seizures without a warrant, and the judicial branch shall judge the merit of those warrants. But the Bush administration wishes simply nullify that entire concept, if those searches are electronic in nature. It takes no imagination at all to observe that once one type of widespread, warrantless, causeless electronic search is deemed to be outside of 4th Amendment protections, an entire series of other electronic searches will follow. That is, after all, the entire reason the Bush administration pursued these searches illegally, rather than attempting to change FISA law in advance; they have every intention of creating a precedent for future searches, and they now have been given exactly that.
3. It was easy. I mean, Jesus H. Christmas, it has been the easiest thing in the world -- all they had to do was not do it. It's not freakin' rocket science -- but thanks to the efforts of a number of Democrats, not just Rockefeller and Hoyer but people like Reid and Pelosi, they just couldn't not put immunity in. We were never told why it was so all-fired important -- they would never grace us with any non-childish, non-condescending, non-flagrantly-insulting explanation. But instead of just not passing bills granting immunity, we had Reid treating Dodd more shabbily than he ever treated any Republican, and Hoyer apparently going around Pelosi, and all manner of prodding and dealing by Democrats to get immunity for these acts. It is baffling, and the only rationale available seems to be the most cynical one -- it is merely doing the bidding of companies that provide substantive campaign contributions. No other explanation would seem to suffice.

So those are the reasons. Because of all the issues we've faced, in the last few years, this one was an absolute no-brainer, the one thing that the Democrats, no matter how stunningly incompetent, humiliatingly ineffective or bafflingly capitulating they may be, could manage to win simply by sitting on their damn hands. But no; it took serious work to lose on this one. Serious, burning-the-midnight-oil work to manage to quite so cravenly negate their own oversight duties.

And that is why this will not be forgotten anytime soon. A caucus willing to go to these lengths to satisfy the illegalities of the Bush administration is not one that can easily be defended. It is understandable that it would take a great deal of courage to enforce Congressional subpoenas. We can understand that voting against funding for the war could be risky, if we were to presume that Bush would simply keep the troops in the Iraqi desert to rot regardless of funding.
But this one? This petty, stinking issue of granting retroactive immunity to companies that violated the law, such that they need not even say how they violated the law, or when they violated the law, or how often, or against who, and the whole thing started before 9/11 so it is clear that terrorism wasn't even a prime factor for doing it -- that whole mess is now absolved, no lawsuits, no discovery, no evidence allowed to be presented?

No, that one is indefensible. It is indefensible because it requires not just passive acceptance of a corrupt administration performing illegal acts, but legislators actively condoning those acts with the stroke of a pen. The Democrats are determined to set themselves as partners in committing crimes, then absolving them; there should be nothing but contempt for such acts.
::

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From Talking Points Memo:

Why Obama's Support For FISA Cave-In Is Such A Downer
By Greg Sargent - June 20, 2008, 4:32PM

Here's what's so dispiriting about it. One of the riveting things about Barack Obama's candidacy is that since the outset of the campaign he's seemed absolutely dead serious about changing the way foreign policy is discussed and argued about in this country.

Time and again, in his debates with Hillary, and now with John McCain, his whole debate posture on national security issues was centered on the idea that he could challenge and change what it means to talk "tough." His candidacy has long seemed to embody a conviction that Democrats can win arguments with Republicans about national security -- that if Dems stick to a set of core principles, and forcefully argue for them without blinking, they can and will persuade people that, simply put, they are right and Republicans are wrong.

Obama has done this already in this general election -- repeatedly. And no doubt he will do it again and again and again in the months ahead. Not this time.

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.

Late Update: Glenn Greenwald, a leading critic of Obama on this, sends me his skeptical take on why he thinks Obama's promise to work on the bill in the Senate doesn't change anything:

"I think we do a grave disservice if we try to convince people that Obama is really going to work to get amnesty out of the bill. Reid is already saying it's just theater -- they know it's going to fail -- it's just a way, Reid said, to let people "express themselves." It's all designed to let Obama say, once he votes for this bill: "Well, I tried to get amnesty out." He's going to vote for amnesty -- and his statement today seals the fate of this bill. Why sugar coat that?"

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From Salon:

Obama's support for the FISA "compromise"
By Glen Greenwald
(updated below)

In the past 24 hours, specifically beginning with the moment Barack Obama announced that he now supports the Cheney/Rockefeller/Hoyer House bill, there have magically arisen -- in places where one would never have expected to find them -- all sorts of claims about why this FISA "compromise" isn't really so bad after all. People who spent the week railing against Steny Hoyer as an evil, craven enabler of the Bush administration -- or who spent the last several months identically railing against Jay Rockefeller -- suddenly changed their minds completely when Barack Obama announced that he would do the same thing as they did. What had been a vicious assault on our Constitution, and corrupt complicity to conceal Bush lawbreaking, magically and instantaneously transformed into a perfectly understandable position, even a shrewd and commendable decision, that we should not only accept, but be grateful for as undertaken by Obama for our Own Good.

Accompanying those claims are a whole array of factually false statements about the bill, deployed in service of defending Obama's indefensible -- and deeply unprincipled -- support for this "compromise." Numerous individuals stepped forward to assure us that there was only one small bad part of this bill -- the part which immunizes lawbreaking telecoms -- and since Obama says that he opposes that part, there is no basis for criticizing him for what he did. Besides, even if Obama decided to support an imperfect bill, it's our duty to refrain from voicing any criticism of him, because the Only Thing That Matters is that Barack Obama be put in the Oval Office, and we must do anything and everything -- including remain silent when he embraces a full-scale assault on the Fourth Amendment and the rule of law -- because every goal is now subordinate to electing Barack Obama our new Leader.

It is absolutely false that the only unconstitutional and destructive provision of this "compromise" bill is the telecom amnesty part. It's true that most people working to defeat the Cheney/Rockefeller bill viewed opposition to telecom amnesty as the most politically potent way to defeat the bill, but the bill's expansion of warrantless eavesdropping powers vested in the President, and its evisceration of safeguards against abuses of those powers, is at least as long-lasting and destructive as the telecom amnesty provisions. The bill legalizes many of the warrantless eavesdropping activities George Bush secretly and illegally ordered in 2001. Those warrantless eavesdropping powers violate core Fourth Amendment protections. And Barack Obama now supports all of it, and will vote it into law. Those are just facts.

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power." Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.

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

* * * * *
Last night, Greg Sargent wrote that the most infuriating aspect of what Obama did here "is that since the outset of the campaign he's seemed absolutely dead serious about changing the way foreign policy is discussed and argued about in this country"; that Obama's "candidacy has long seemed to embody a conviction that Democrats can win arguments with Republicans about national security -- that if Dems stick to a set of core principles, and forcefully argue for them without blinking, they can and will persuade people that, simply put, they are right and Republicans are wrong"; and that "this time, he abandoned that premise," even though:

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.

This superb piece from The Technology Liberation Front makes the same argument:

We are, in other words, right back to the narrative where being "strong" on national security means trashing the constitution. . . . . This is doubly disappointing because until now Obama has been a master at re-framing national security debates to get out of this box. Unlike John Kerry, he has refused to shy away from a confrontational posture on foreign policy issues. He's shown a willingness to say he has a better foreign policy vision, rather than simply insisting he can be just as tough on the terrorists as the Republicans are. He could and should have done the same with FISA, taking the opportunity to explain why warrantless surveillance isn't necessary to protect us from the terrorists. But it seems he, along with Steny Hoyer and Harry Reid, chickened out. So it's back to Republicans being tough on national security and Democrats defensively insisting that they, too, hate terrorists more than they love the constitution.

It's either that he "chickened out" or -- as Yale Law Professor Jack Balkin asserts and Digby wonders -- Obama believes he will be President and wants these extreme powers for himself, no doubt, he believes, because he'll exercise them magnanimously, for our Own Good. Whatever the motives -- and I don't know (or much care) what they are -- Obama has embraced a bill that is not only redolent of many of the excesses of Bush's executive power theories and surveillance state expansions, but worse, has done so by embracing the underlying rationale of "Be-scared-and-give-up-your-rights." Note that the very first line of Obama's statement warns us that we face what he calls "grave threats," and that therefore, we must accept that our Leader needs more unlimited power, and the best we can do is trust that he will use it for our Good.
Making matters worse still, what Obama did yesterday is in clear tension with an emphatic promise that he made just months ago. As the extremely pro-Obama MoveOn.org notes today, Obama's spokesman, Bill Burton, back in in September, vowed that Obama would "support a filibuster of any bill that includes retroactive immunity for telecommunications companies." MoveOn believes Obama should be held to his word and is thus conducting a campaign urging Obama to do what he promised -- support a filibuster to stop the enactment of telecom amnesty. You can email Burton here to demand that Obama comply with his commitment not just to vote against, but to filibuster, telecom amnesty:

bburton@barackobama.com

Incidentally, Chris Dodd made an identical promise when he was running for President, prompting the support of hundreds of thousands of new contributors, and he ought to be held to his promise as well.

* * * * *

The excuse that Obama's support for this bill is politically shrewd is -- even if accurate -- neither a defense of what he did nor a reason to refrain from loudly criticizing him for it. Actually, it's the opposite. It's precisely because Obama is calculating that he can -- without real consequence -- trample upon the political values of those who believe in the Constitution and the rule of law that it's necessary to do what one can to change that calculus. Telling Obama that you'll cheer for him no matter what he does, that you'll vest in him Blind Faith that anything he does is done with the purest of motives, ensures that he will continue to ignore you and your political interests.
Beyond that, this attitude that we should uncritically support Obama in everything he does and refrain from criticizing him is unhealthy in the extreme. No political leader merits uncritical devotion -- neither when they are running for office nor when they occupy it -- and there are few things more dangerous than announcing that you so deeply believe in the Core Goodness of a political leader, or that we face such extreme political crises that you trust and support whatever your Leader does, even when you don't understand it or think that it's wrong. That's precisely the warped authoritarian mindset that defined the Bush Movement and led to the insanity of the post-9/11 Era, and that uncritical reverence is no more attractive or healthy when it's shifted to a new Leader.

What Barack Obama did here was wrong and destructive. He's supporting a bill that is a full-scale assault on our Constitution and an endorsement of the premise that our laws can be broken by the political and corporate elite whenever the scary specter of The Terrorists can be invoked to justify it. What's more, as a Constitutional Law Professor, he knows full well what a radical perversion of our Constitution this bill is, and yet he's supporting it anyway. Anyone who sugarcoats or justifies that is doing a real disservice to their claimed political values and to the truth.

The excuse that we must sit by quietly and allow him to do these things with no opposition so that he can win is itself a corrupted and self-destructive mentality. That mindset has no end. Once he's elected, it will transform into: "It's vital that Obama keeps his majority in Congress so you have to keep quiet until after the 2010 midterms," after which it will be: "It's vital that Obama is re-elected so you have to keep quiet until after 2012," at which point the process will repeat itself from the first step. Quite plainly, those are excuses to justify mindless devotion, not genuine political strategies.

Having said all of that, the other extreme -- declaring that Obama is now Evil Incarnate, no better than John McCain, etc. etc. -- is no better. Obama is a politician running for political office, driven by all the standard, pedestrian impulses of most other people who seek and crave political power. It's nothing more or less than that, and it is just as imperative today as it was yesterday that the sickly right-wing faction be permanently removed from power and that there is never any such thing as the John McCain Administration (as one commenter ironically noted yesterday, at the very least, Obama is far more likely to appoint Supreme Court Justices who will rule that the bill Obama supports is patently unconstitutional). The commenter sysprog described perfectly the irrational excesses of both extremes the other day:

Argh

Why are so many four-year-olds and fourteen-year-olds making comments on blogs?
Four-year-olds see their preferred politicians as god-like fathers (or mothers) whose virtuous character will guarantee good judgment. If a judgment looks questionable to you, then it's because you don't know all the facts that mommy and daddy know, or it's because you aren't as wise as them.

Fourteen-year-olds have had their illusions shattered about those devilish politicians so now they perceive the TRUTH - - that mommy and daddy make bad judgments because mommy and daddy are utterly corrupt.

Personally, I can empathize with the impulses behind the latter far more than the former, even while recognizing that they both must be diligently avoided. It's understandable that there is a substantial sense of anger and betrayal towards Obama as a result of what he did yesterday, particularly among those who previously viewed him as something transcendent and "different." Quoting Shakespeare is always slightly pompous (at least) but -- with apologies in advance -- his observation in Sonnet 94 is too apropos here to refrain:

For sweetest things turn sourest by their deeds;
Lilies that fester smell far worse than weeds.


If there is one good thing that can come from this week's horrific embrace by Obama and our bipartisan political establishment of warrantless eavesdropping and telecom amnesty, perhaps it will be that the illusions of "lily-ness" about Barack Obama can finally fade away and be replaced by a more realistic perception of what he is, what his limits are, and the reasons why he merits real scrutiny, criticism and checks -- like everyone else pursuing political power does. Recall that the very first thing that he did upon securing the nomination was run to AIPAC to prostrate himself before them and swear undying fealty to their militant pieties. There will be plenty more of these sorts of ugly rituals to come. Whether you think he is engaging in them out of justifiable political calculation or some barren quest for power doesn't much matter.

Either way, no good comes from lending uncritical support to a political leader, or cheering them on when they do bad and destructive things, or using twisted rationalizations to justify their full-scale assault on your core political values. The overriding lesson of the last seven years is that political figures, more than they need anything else, need checks and limits. That is just as important to keep in mind -- probably more so -- when you love or revere a political leader as it is when you detest one.

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The campaign against politicians who are enabling this assault on our Constitutional framework, core civil liberties and the rule of law has now raised close to $300,000. My explanation about the current plans for these funds, in response to a commenter's inquiries, can be read here. Contributions to that campaign can be made here.UPDATE:

In comments, Hume's Ghost wrote:

What really rubbed me the wrong way was how Obama in his statement says essentially trust me with these powers, I'll use them responsibly.

Nope.

"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." - John Adams [1772].

In 1799, Thomas Jefferson echoed that: "Free government is founded in jealousy, not confidence . . . . Let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitutions." Between (a) relying on the limitations imposed by the Constitution or (b) placing faith in the promises of a political leader not to abuse his unchecked power, it isn't really a difficult choice -- at least it ought not to be, no matter who the political leader in question happens to be.

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