Friday, July 4, 2008

Analysis of Barack Obama's Reasons for Supporting the FISA Legislation

I would like to draw your attention to Glenn Greenwald's superb and in-depth analysis of the FISA legislation that will be voted on in the Senate next week. I have already discussed in a previous entry, Barack Obama's complete reversal in position on this issue but it is worth restating. Barack Obama's previous position is that he would support the filibuster of any legislation that contained immunity for the telecom companies. Now, Obama has come out in support of the new FISA legislation that will do just that.

This current revision of the FISA legislation will essentially give retroactive immunity to telecom companies that broke the law by spying on Americans in violation of the Constitution. President Bush has claimed that it is important for immunity to be granted so that telecom companies will not be deterred from helping in the future.

Obama has received a backlash of anger from some of his own supporters on this issue who are even using his own website as an organizing tool to petition Obama to reject the FISA legislation. So Obama released a statement yesterday in response and to justify his new stance on the bill.

Glenn Greenwald has also posted a point-by-point analysis of Obama's statement, detailing how it is both misleading and contrary to logic. I will give you some brief highlights of Greenwald's analysis.

1. Obama states that the bill indeed does give immunity to the telecom companies that broke the law and that he will work to strike this Title from the overall bill.

Greenwald's response:

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.

2. Obama states that the bill is much better than the "Protect America Act" which he 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.

3. Obama states that the exclusivity provision of the bill makes it clear to both telecom companies and any President that no law supercedes FISA.


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.

4. Obama states that in a dangerous world, the government needs the authority to collect intelligence it needs to protect Americans.


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?

5. Obama states that authority cannot be unlimited in a free society and that independent monitors must exist to "watch the watchers". He claims that this new bill assures that the FISA court will be able to do this to protect against abuses.


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?

6. Obama states that the Inspectors General report provides an additional mechanism for accountability. He claims the court can look at past misconduct without the "hurdles" of the federal courts.


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.

7. Obama states that it is important for the government to be able to track those who want to attack the United States. Obama claims that since "certain electronic surveillance orders will begin to expire later this summer" he would rather vote for an imperfect bill than lose important surveillance tools.


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?

8. Obama states that once he is sworn in, he will ask his Attorney General to do a comprehensive review of all the surveillance programs and recommend ways to both further protect civil liberties and prevent abuse from the executive branch.


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.

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