There are days when you have to wonder whether there is much of a difference between the major party’s presidential candidates.
Yesterday was one of them.The U.S. Senate — with Democrat Barack Obama voting yes — approved “a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.”
The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years. It includes a divisive element that Mr. Bush had deemed essential: legal immunity for the phone companies that cooperated in the National Security Agency wiretapping program he approved after the Sept. 11 attacks.
The immunity provision — which
Glenn Greenwald points out covers not just past actions but potential futures ones, as well — makes it impossible to hold the Bush administration accountable for the wiretapping program and what was a likely violation of federal law. Without the legislation, telecom companies could have been called to testify on the program.
Greenwald sums things up pretty succinctly:
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.
Which brings me back to Obama and John McCain. One voted for the FISA bill — Obama — the other wasn’t present but supported the legislation — McCain, in what can only be described as a dereliction of duty. McCain’s position was to be expected, but Obama’s? Despite his claims to the contrary that his vote did not signal a shift, he directly contradicted a vow he made last year to fight any bill that included immunity.
Greenwald calls it a “complete betrayal,” adding that
A more complete abandonment of an unambiguous campaign promise is difficult to imagine.
Lawrence Lessig, a professor at Stanford who has been fighting to change the culture of American politics, offered this criticism earlier this week (Greenwald had linked to it, which is where I first found it, but I thought it worth linking to it, as well), saying Obama was engaged in “self-swiftboating”:
The Obama self-Swiftboating comes from a month of decisions that, while perhaps better tuning the policy positions of the campaign to what is good, or true, or right, or even expedient, completely undermine Obama’s signal virtue — that he’s different. We’ve handed the other side a string of examples that they will now use to argue (as Senator Graham did most effectively on Meet the Press) that Obama is nothing different, he’s just another politician, and that even if you believe that McCain too is just another politician, between these two ordinary politicians, pick the one with the most experience.
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).
He says the FISA vote is just the latest example of this:
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.”
But the point is that the point is not the substance of the issue. I’d argue until the cows come home that in a world where soldiers go to prison for breaking the law, the government shouldn’t be giving immunity to (generous campaign contributing) companies who break the law. But a mistake about substance is not why this flip is a mistake. I agree that a tiny proportion of the world thinks defeating Telco Immunity is important. The vast majority don’t even understand the issue. But what this perspective misses is just how easy it will be to use this (clear) flip in policy positions to support the argument “Obama is no different.” Here, and in other places, the campaign hands the other side kryptonite.
The issue cannot just be the substance alone. It has got to also be how a change on that substance will be perceived: And here (as with the other flips), it will be perceived in a manner that can’t help but erode the most important core of the Obama machine. It is behavior that attacks Obama’s strongest feature — that he is different. It is, therefore, Swiftboating.
I’m not sure he goes far enough. The flip is only part of the problem. He didn’t just flip, he flipped on an issue that has constitutional implications, leaving me to wonder how committed this former constitutional law professor is to civil liberties.
And he, like too many Democratic candidates before him, shows that he is willing to jettison the party’s liberal and left wings in a craven attempt to occupy some mythical center. This, of course, isn’t change or reform; it’s conventional wisdom of the most distasteful sort.
UPDATE: Lessig’s post today criticizes the left for misreading Obama and not recognizing that his vote was about him believing the FISA bill offered important improvements on the old law and that the improvements were more important that telcom immunity in the larger scheme of things. It was about balancing things — which is what legislators do in a democracy.
I agree — to a point. I think it is foolish to assume that liberal politicians might not occasionally vote in favor of legislation that includes bad provisions. Ted Kennedy, after all, helped shepherd No Child Left Behind through the Senate.
But the so-called improvements in this bill are illusory. While the bill includes a “reaffirmation that the FISA law is the ‘exclusive’ means of conducting intelligence wiretaps,” it does not tighten FISA. In fact, as the Times points out, the bill
expands the government’s power to invoke emergency wiretapping procedures. While the N.S.A. would be allowed to seek court orders for broad groups of foreign targets, the law creates a new seven-day period for directing wiretaps at foreigners without a court order in “exigent” circumstances if government officials assert that important national security information would be lost. The law also expands to seven days, from three, the period for emergency wiretaps on Americans without a court order if the attorney general certifies there is probable cause to believe the target is linked to terrorism.
That, plus the immunity, means that Obama struck the wrong balance on the FISA question.
