by Damozel | This piece of legislation --- and what Congress has done to the fourth amendment---which protects the privacy of ordinary citizens from unreasonable invasion by the government --- matters.
Those who defended the telecoms for breaking federal law at the request of the Bush administration kept talking about the telecoms' subjection to 'the heavy hand of government.' This was always spurious argument in the case of the telecoms, who had no more obligation than you or I to comply with an unlawful demand to break the law (none) and the same obligation as you or I would have to refuse to comply. And in fact, not all telecoms chose to go along with the demand.
FISA, on the other hand, unleashes 'the heavy hand of government' on ordinary citizens.
One person FISA matters to is W, who must be breaking out the champagne. Hurray! It's an ill wind that blows nobody no good.
Through FISA, Congress has authorized the executive branch --- the President via agencies under the control of the executive branch -- to spy on American citizens with very few controls.
Furthermore, telecom immunity has also effectively immunized the president, meaning this president, W., and his handlers from accountability for his own lawbreaking. With telecom immunity, the evidence that would be needed to hold him accountable are effectively placed out of reach. A few days ago constitutional lawyer Glenn Greenwald wrote:
[W]e have extremely strong indications from multiple courts that the President deliberately broke the law for years -- a law that provides that violations of its provisions are felonies punishable with 5 years in prison for each offense. And yet our political establishment, with Democrats at the helm, are about to ensure that there are never any consequences for that lawbreaking and no accountability whatsoever in a court of law. (Glenn Greenwald)
Which is exactly what they did: agree to cover all the tracks. . Imagine being able to break the law, get paid for it, and get Congress to pass legislation that ensures you won't be held accountable! And I'm not even talking about the telecoms. The Talking Dog explains this isn't really about them. They were never going to be held accountable anyway.
The "telecom immunity" has nothing to do with telecoms: they would ultimately (or not so ultimately) be indemnified by Big Brother, and further, they have been paid for their "cooperation." The impetus for this is to kill lawsuits, where civil discovery would have revealed the full scope of the massive invasions of all our privacy. And these privacy invasions-- Big Brother reading your e-mail and faxes and listening into your phone conversations and who knows what else (reading our mail? bugging our homes?)-- could only be dealt with if we even knew what they were.
So Congress --- yet again --- has sold out its obligation to act as a check on the executive branch, and why? Out of cravenness, lack of principle, quid pro quo for political favors, the wish to pander to the fears of constituents too apathetic to try to understand the workings of their government but terribly susceptible to emotional appeals to basic human cowardice?
At Kiko's House, Shaun Mullen has compressed into a nutshell, via a quote from Georgetown Law Professor Jonathan Turley everything you need to know about what this legislation means. As he says, extracting the marrow from the fourth amendment...that's going to hurt.
Greenwald, on the other hand, writes about FISA so extensively that it's difficult to extract the core of his intelligent and cold-eyed arguments. As he points out, the current trend is to frame (demonize) opposition to FISA as a phenomenon of wild-eyed 'far left' Democrats. Don't believe it.
Greenwald would ask you to look at the people who voted in favor of FISA as against those who oppose it.
The very people who are doing this and justifying it are the same ones who spent the last seven years either meekly submitting to or actively enabling the whole radical litany of Bush war-making and law-breaking. Despite that, these people -- the same ones who cheered on the most unpopular President in modern American history and one of the most disastrous, hated wars and the whole range of radical, un-American measures of the last seven years -- are insisting that they are the mainstream "centrists," and that that those who merely favor the preservation of this long-standing FISA framework to protect our core constitutional liberties are the "radicals" -- Far Leftist radicals who believe in such extremist and discredited doctrines as the Fourth Amendment, judicial warrants, and the rule of law.Those are the rotted premises that have produced the political climate of the last seven years and which have led us to the Senate vote next week. (Salon; emphasis added)
And he points out:
The vote in favor of the new FISA bill was 69-28. Barack Obama joined every Senate Republican (and every House Republican other than one) by voting in favor of it, while his now-vanquished primary rival, Sen. Hillary Clinton, voted against it. John McCain wasn't present for any of the votes, but shared Obama's support for the bill. The bill will now be sent to an extremely happy George Bush, who already announced that he enthusiastically supports it, and he will sign it into law very shortly.
Prior to final approval, the Senate, in the morning, rejected three separate amendments which would have improved the bill but which, the White House threatened, would have prompted a veto. With those amendments defeated, the Senate then passed the same bill passed last week by the House, which means it is that bill, in unchanged form, that will be signed into law -- just as the Bush administration demanded.(Salon)
Greenwald provides what I shall call 'the Honor Roll of those who stood up for the Constitution':
Democrats voting against final passage of the FISA bill: Akaka - Biden - Bingaman - Boxer - Brown - Byrd - Cantwell - Cardin -Clinton - Dodd - Dorgan - Durbin - Feingold - Harkin - Kerry -Klobachur - Lautenberg - Leahy - Levin - Menendez - Murray - Reed -Reid - Sanders - Schumer - Stabenow - Tester - Wyden.
As for the lamest of lame arguments for rationalizing that what Obama did was the right thing --- which I have heard people--- seriously assert, he kicks that one to the curb as well:
Today's leading Obama-defending diary at Daily Kos...spouts the consummate mentality of the standard Bush follower by proclaiming that he doesn't care about warrantless government spyingbecause it's only used against other people (The Bad People presumably) and thus "WILL NOT affect my life AT ALL." That exact justification applies to, and has been used to justify, torture and attacks on other countries, too). Substance aside, it's impossible to understand why the Obama campaign thinks it's good politics to change core positions so flagrantly (Salon)
And Greenwald speaks to those who want to justify this vote in order to justify Obama. Sorry: that argument won't fly, except among those who are so desperate to see him as flawless that they are willing to drown the facts in a sea of whitewash.
At The Reaction, Creature ain't making any excuses for Obama.
I knew Barack Obama's yes vote for the constitutionally-flawed, immunity-laden FISA bill today was all but certain, but now that's it's done I'm even more furious than before. To give Bush what he wanted, to cover-up massive telcom and administration law-breaking, to throw in with the GOP and the likes of Rockefeller and Feinstein (on the Democratic side) is beyond the pale. Thanks for nothing, Barack Obama. If you ever return to teaching Constitutional law I hope you're proud that you are personally responsible for having one less amendment to teach. (emphasis added)
Though Obama has avoided taking a stand on some issues, and taken a right-of-left stand on others, on FISA he flat-out reversed himself. See TPM for a time-line of his various statements.
And don't believe the arguments that seek to find some sort of grand secret strategy behind his vote. The only strategy was 'political expediency,' and even that is now in question.
[T]he insultingly false claims about this bill -- it brings the FISA court back into eavesdropping! it actually improves civil liberties! Obama will now go after the telecoms criminally! Government spying and lawbreaking isn't really that important anyway! -- are being disseminated by the Democratic Congressional leadership and, most of all, by those desperate to glorify Barack Obama and justify anything and everything he does. Many of these are the same people who spent the last five years screaming that Bush was shredding the Constitution, that spying on Americans was profoundly dangerous, that the political establishment did nothing about Bush's lawbreaking.
It's been quite disturbing to watch them turn on a dime -- completely reverse everything they claimed to believe -- the minute Obama issued his statement saying that he would support this bill. They actually have the audacity to say that this bill -- a bill which Bush, Cheney and the entire GOP eagerly support, while virtually every civil libertarianvehemently opposes-- will increase the civil liberties that Americans enjoy, as though Dick Cheney...decided that it was urgently important to pass a new bill to restrict presidential spying and enhance our civil liberties. How completely do you have to relinquish your critical faculties at Barack Obama's altar in order to get yourself to think that way? (Salon)
Libertarian blogger Lew Rockwell concisely frames for civil libertarians a question that is beginning to worry me as a Democrat:
All it took for Obama to become less civil libertarian than Hillary was getting the nomination. What will he do as president?
Senator Clinton spoke on the bill as well as voting against it. I don't think her denunciation was as strong as it ought to have been, but at least she spoke against it. At Open Left, Matt Stoller sheepishly can't quite bring himself to praise her stance except with faint damns. Instead he finds it 'ironic.'
I wonder why she did this. It's possible she voted this way to embarrass Obama, though it's more likely she just believes that this is a bad bill. Maybe it's heralding a new Clinton who is less cautious and more willing to fight for liberal principles.
Eh, I don't know, but kudos to Clinton. It's ironic so far I suppose that Clinton is of late a more reliable ally than Obama, at least on this issue.
The Talking Dog likewise wants to believe that Clinton would have voted the same way as Obama to avoid looking 'soft on terror.' Um...what? Then why feel outraged over the bill at all? Just see it as part of Obama's winning strategy.
I join myiq2xu at The Confluence in spluttering with incredulous laughter that even when Hillary does the right thing, she can't get any credit for it. After all, as the piece points out: Occam's Razor. (Things That Make You go WTF?) Methinks a number of my fellow Dems are desperately fending off 'buyer's remorse.' The way things are going, I can't say I blame them. They should probably keep it up as long as they can. McCain, after all, whatever you think of Obama, is even worse.
What does the FISA reversal show about Obama? That he is an adroit old-style politician ---or that he is a weak one? Taylor Marsh puts forward one view:
That Barack Obama voted with the Republicans should put to rest any idea whatsoever of his...his ability to stand up to knee jerk charges that inevitably come at Democrats. The fact that he likely voted the way he did in order not to be tagged as being "weak on national security" actually illustrates his vulnerabilities more than prove his strengths. Because you can't posture that you're strong on matters like these, you either are or you aren't.
As an aside, it also proves that on Iraq, if Obama had been in the senate, he'd likely have voted for the AUMF, just like Hillary and all the other Democrats. But that's moot now.
At Lawyers, Guns, and Money, Scott Lemieux poses the musical question: 'Are You Tough Enough?' and responds:
No. (...."Step 2! There's so much we can do! To capitulate to Bush and expand arbitrary executive power!")....And all due credit to Clinton.
Check out the video here.
As Pamela Leavey says as The Democratic Daily, this cave in is particularly hard on Dems who wanted to see Clinton chosen as the presumptive nominee.
But will the FISA cave really help Obama be perceived as strong on security? And will McCain's absence from the vote give him a comeback? The McCain camp is betting 'no.'
"Charting Barack Obama's reversals on this issue reads like a road map to political expediency," McCain spokesman Tucker Bounds said Wednesday. "When he was trying to earn votes from the liberal left he made promises that he was quick to dispense with - and it shows that his word is a political tool, not a principled commitment. On the other hand, John McCain has stayed the responsible course on this issue, it's well understood and consistent." (The Swamp)
In other words, McCain's people are arguing -- correct me if I'm wrong -- that people should vote for McCain because he is consistently wrong, whereas -- as to FISA, anyway -- Obama goes back and forth, inconsistently. Sigh. Why should it always come down to a choice between the lesser of two evils? The campaign isn't only about FISA, and I remain on Obama's side of the fence. But I am longing to feel better about him as the nominee, and this isn't helping. More blogger reaction here.
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