FISA – Hank Kalet

Obama’s misstep

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.

What good are Democrats?

Chris Dodd is my new hero. He appears to be Dan Froomkin’s hero, as well, along with Glenn Greenwald of Salon — who called it “one of the most compelling and inspired speeches by a prominent politician that I’ve heard in quite some time.”

The reason is that Dodd has been hammering home the dangers of the Bush approach to surveillance and Congressional Democrats’ willingness to compromise to avoid appearing weak. Dodd’s assault — I think that is fair — on this cynical approach is a reminder in many ways that we will need to apply significant pressure to the Democratic nominee (the Republican nominee is a lost cause on this) if we are to keep him from tacking right.

Sen. Barack Obama, the Democratic standard-bearer, has announced that he plans to support the FISA deal — an about-face from his early promise to fillibuster any legislation that included immunity from lawsuits for telecom companies that may have been involved in domestic spying. His reasoning: The bill

“firmly re-establishes basic judicial oversight over all domestic surveillance in the future”

and

“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.”

He reaffirmed his position today:

“It is a close call for me,” Obama told reporters. But he said the addition of the “exclusivity” provision giving power to the secret court, along with a new inspector general role and other oversight additions, “met my basic concerns.” He said the bill’s target should not be the phone companies’ culpability, but “can we get to the bottom of what’s taking place, and do we have safeguards?”

That’s just not enough, as Sen. Russ Feingold, the Wisconsin Democrat, makes clear in comments about his Democratic House colleagues:

“That’s a farce and it’s political cover,” Feingold said. “Anybody who claims this is an okay bill, I really question if they’ve even read it. ”

“Democrats enabled [this],” Feingold went on. “Some of the rank-and-file Democrats in the Senate who were elected on this reform platform unfortunately voted with Kit Bond, who’s just giggling, he’s so happy with what he got. We caved in.”

It is up us to to force their hand.

NJ vote on FISA bill

The New Jersey delegation voted 7-6 for the FISA compromise, an affront to the U.S. Constitution. All six Republicans voted for the amendments, as did Democrat Albio Sires, who represents the 13th District.

Voting against: Rob Andrews, Donald Payne, Bill Pascrell, Steve Rothman, Frank Pallone and Rush Holt, who gave an impassioned speech against the bill (above). (Thanks to Blue Jersey for alerting me to the clip.)

Exactly who are the cynics, anyway?

Glenn Greenwald makes a pretty salient point today in discussing the Beltway tendency to dismiss “anyone who aggressively objects to the Bush administration’s extremism, and especially its lawbreaking,” as “either fringe, unSerious, overly earnest losers,” or “simply pretending to be bothered by such things in order to rouse the rabble and exploit them for cynical political gain.”

Anyone who disrupts Beltway harmony in order to hold the Bush administration accountable — anyone who seems actually bothered by the rampant lawbreaking — is thus easily dismissed as an annoying radical or a self-promoting fraud.

Greenwald’s issue is with the manner in which Senate Majority Leader Harry Reid, though a staffer, attacked Connecticutt Sen. Chris Dodd, a fellow Democrat, because Dodd refused to go along with Reid’s — and most of the rest of the Democrats’ — support for granting telecom companies immunity for their involvement in the Bush eavesdropping scandal.

After all, it can’t possibly be the case that Dodd actually believes in what he’s doing and saying. He can’t really care if telecoms are protected from the consequences of their years of deliberate, highly profitable lawbreaking. Clearly, Dodd’s just doing all of this to prop up his flagging presidential campaign, just a cynical ploy for attention, not because he has any actual convictions that there is something wrong with granting such an extraordinary and corrupt gift to lawbreaking telecoms. No Serious person would ever actually get riled up about anything like that.

Greenwald connects the Reid attack on Dodd to similar dismissals of Russ Feingold, the Wisconsin Democrat, last year.

Feingold was one of the few voices on the national political scene who actually objected meaningfully to the fact that the President was deliberately breaking our laws in how he spied on Americans ever since October, 2001. Feingold spent the year espousing what ought to have been the uncontroversial proposition that for Congress simply to look the other way and to ignore these revelations of illegality would be to reward lawbreaking and eviscerate the rule of law. But his motives were impugned by the Beltway establishment exactly as they are doing now to Dodd.

In March 2006, when Feingold introduced his Resolution to censure the President for breaking our laws, the super-sophisticated punditocracy, GOP Bush apologists, and the highly responsible Betlway Democratic establishment all jointly scoffed at Feingold, oh-so-knowingly dismissing his little outburst as nothing more than a cynical ploy to shore up the “leftist base” as he prepared to run for President. After all, nobody could really take seriously the idea that Bush shouldn’t be allowed to break our laws. The only possible motive for pretending to care is that Feingold wanted to scrounge up support for his presidential campaign.

Feingold announced in November, 2006 that he wasn’t running for President, yet he continued to pursue these matters with exactly the same tenacity and intensity as before. There he was this week, standing with Dodd against warrantless surveillance and telecom immunity, even though — as a Senator from a far-from-blue state — there is little political benefit and some risk in his doing so.

So perhaps Feingold was sincere all along, maybe he does genuinely believe that the President and the telecom industry shouldn’t be permitted to break our laws with impunity. But that thought is beyond the reach of our Establishment guardians. Because they believe in nothing other than their own petty Beltway rituals, they assume everyone else is similarly barren and empty, bereft of any actual convictions about anything.

The point here is that the entire political culture of Washington has become enamored of its own cynical games. The folks at the center of it — the politicians of both parties, the media (both print and broadcast) and the various paid consultants, lobbyists and assorted hangers-on — have lost sight of what matters. Everything is about advantage, money and power and those politicians who are willing to act on something more noble like Dodd and Feingold — and like Ron Paul and Chuck Hagel on the Republican side — are deemed to be rabble rousers of the worst sort and shunted to the outside of the process.

Dodd’s quixotic presidential bid — you have to know that he knows he’s tilting at windmills — offers him a platform on which to make his case about FISA in the same manner in which Bill Richardson is using his platform to agitate for withdrawal from Iraq and John Edwards is using his to draw attention to the nation’s economic disparities.

Might there be ego involved? Of course. I have never met a politician at any level that did not have some inflated sense of himself. But there has to be more to it than ego and cynicism. And if there is not, then we are waging an unwinnable war to save our democracy.

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The Blog of South Brunswick

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Calling out the hypocrites

Dahlia Lithwick links the U.S. attorney scandal to the recent FISA vote, calling out the Democrats for, in her words, “hypocritically berating the attorney general with fingers crossed behind their backs.”

‘Nuff said.

South Brunswick Post, The Cranbury Press
The Blog of South Brunswick

E-mail me by clicking here.