Bleccchh

by hilzoy

So: Obama supports the hateful FISA thing. You can read his full statement here. Excerpts:

"Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders. (...)

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise 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. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people."

Blech. Feh. Ick.

I should say a couple of things, though. First, I haven't worked through the part of the bill that does not concern telecom immunity. If anyone knows a good nuts-and-bolts account of what the rest of the bill does, please let me know -- ideally, I'd like a straightforward account of what I'd discover if I sat down with it, looked up all the statutes to see what it means when it says "subsection (d) of section 28 of Title 6⅝ of the United States Code is hereby amended by striking the word "the" and inserting "a"", and worked it all out. So I don't know exactly how bad it is. My operating assumption is that it has good parts that are actually necessary, but a lot of expansions of wiretapping power that I would flatly oppose.

Second, much as I dislike Obama's statement, I don't think it's right to say things like this (a rare disagreement with Digby):

"I do know this: they would not have made this "compromise" and then brought this to the floor without his ok, and probably without his direction. He is the leader of the Democratic Party now, in the middle of a hotly contested presidential campaign. If he didn't come to them and say to get this thing done before the fall, then they came to him and asked his permission. That's just a fact. They aren't going to do anything he doesn't want them to do."

We are talking about Democrats. Democrats have never been united in that way during my adult lifetime. (I hear rumors that they might have been back when LBJ was in power, but that was a long, long time ago.) Republicans, yes. Democrats, no. Barack Obama is taking over some parts of the party apparatus. But he does not command the complete obedience of several hundred Representatives, each of whom has their own constituents to answer to, and a lot of whom are still inexplicably gunshy about taking on the Republicans on national security. I am not allowing myself to spin hopeful scenarios today, but if I were, one might be: what if he canvassed the House Democrats and found out that this bill was going to pass with or without his support? In his shoes, would I voluntarily take a position that would make it clear that I cannot deliver the votes in my own party? (Since we are, as I said, talking about the Democrats, this sort of inability ought to be no surprise to anyone, but I'm not sure I'd want to make it obvious right now.)

Third, he's a politician. He's going to disappoint us. If I were one of those people who I suspect live mostly in the imaginations of columnists at the National Review -- the people who think Obama is the messiah, capable of making the lion lie down with the lamb, cooling the planet with the touch of his hand, bringing the dead back to life, and so on -- I suppose I'd have just dissolved in tears and sworn off politics for life. Luckily, I'm not. And at times like this, I just cast my mind back over previous Democratic nominees -- Kerry, Clinton, Dukakis -- and think: FISA compromise or no FISA compromise, he's still the best candidate I can remember.

Not that I wouldn't greatly have preferred the 'no FISA compromise' option. A lot.

Comments

[Pithlord]

I don't get this. Private entities are told by the executive branch that they need to do something for national security. What are they supposed to do?

In Canada, you actually aren't supposed to use discovery for purposes extraneous to the civil litigation. The idea that you would support liability just to get discovery seems abhorrent to me.

[Pithlord]

I suspect Digby is right, and Obama was fairly central to the compromise.

[KCinDC]

And the idea that if the president claims it's legal it must be legal isn't abhorrent to you, Pithlord?

[hilzoy]

"What are they supposed to do?"

Um: Ask for a warrant?

[CharleyCarp]

What are they supposed to do?

IIRC, Qwest asked its lawyers if it was legal, or obligatory. And then didn't play along.

I haven't heard what I'd call a credible explanation of the need for this legislation right now. It's not like the supplemental for the wars -- has to be done, or bad stuff happens -- but could have been left to drift.

The Pithlord makes a fair point though: one isn't supposed to have lawsuits just for discovery (except for things like FOIA . . .)

[hilzoy]

OT: The">http://www.dailykos.com/storyonly/2008/6/20/223128/818/541/539504">The 527s come out to play...

[publius]

The idea that you would support liability just to get discovery seems abhorrent to me.

Welcome to the American legal system. It's the ENTIRE POINT of a lot of litigation (i.e., the fear of damaging documents being released provides leverage). Or, the sheer cost of downloading, reviewing, categorizing electronic data is itself leverage.

[J. Michael Neal]

I dislike this bill. All things being equal, I wish Obama hadn't issued this statement. Still, I understand why he chose to duck this fight. Regardless of what he does, it's going to pass, so the practical consequences of opposition would be near zero. Any strong opposition to it will inevitably involve attacking the Democrats who voted for it in the House, and will vote for it in the Senate. That's not exactly what someone trying to build party unity at the moment needs. So, I'll give him a pass for now, particularly since the Senate hasn't even debated the bill yet.

I also don't understand why everyone is so focused on discovery to find out what happened. If Obama wins in November, then, starting in January, he's in charge of the classification process. The next President will know what happened, and will have the power to make it public. That's the test of whether Barack Obama is willing to let us in on the information, not this.

[Turbulence]

I also don't understand why everyone is so focused on discovery to find out what happened.

I can't speak for anyone else, but I'm slightly concerned because it seems like American Presidents have traditionally been very deferential to their predecessors. I don't recall any cases where recent Presidents have publicly exposed their predecessor's misdeeds. Now, Bush II has been so incompetent and mendacious that maybe Obama would feel justified in publicly exposing his misdeeds. Or maybe not.

No matter what Obama is inclined to do, once he takes office, there will be a lot of pressure from Republicans and the media to let bygones be bygones and avoid any accountability whatsoever. David Broder has already written the column where he lambastes Obama for even thinking about publicizing some of Bush's criminality: doing so would be "partisan politics" or would prove that he's an evil jerk or prove that he has no class or prove that he's not interested in change at all or prove that he's not interested in bipartisanship.

I would desperately love to see a President Obama address the nation in his state of the union address and publicly talk about executive crimes, but I'm not holding my breath: for political reasons, it might be that the best we can hope for is quietly releasing damning reports from congressional committees or executive oversight agencies. Even that might come at too high a political price for Obama to countenance.

[Nell]

You're on, J. Michael. I'll give $100. to the cause of your choice if it turns out that Obama is willing to let the U.S. public in on the nature, scale and extent of the spying on us that was done during this administration. He has one year from taking office to show any sign of determination to do so.

[KCinDC]

The next President will know what happened, and will have the power to make it public.

While I agree with Nell that Obama probably won't do a lot of revealing of Bush's misdeeds, I'm not even sure that he will know what happened. I imagine the Bush administration is and will be working overtime to make sure that all incriminating evidence is destroyed before January 20. This administration could leave the sparsest historical record ever.

[kris]

So, should we take him seriously now about his reviewing George Bush's executive orders? This compromise is not just a disappointment, it is an indicator of whether he will roll back the powers the executive has accrued under George Bush. I guess this is what "new politics" and "hope" looks like-old wine in a new bottle.

[J. Michael Neal]

Maybe Obama won't reveal all of this. What I'm saying is that that's the important question, not whether there is discovery in any lawsuit against the telecoms. I have no idea why someone that thinks that the Bush administration is going to shred all of the relevant documents before the next President takes office would think that there is any chance that they wouldn't shred them before being required to turn them over for discovery. If that's what you think is going to happen, then giving up a chance at discovery doesn't constitute giving up anything of value; it wouldn't have produced anything anyway.

If what you want is to know what happened, rather than punishing the telecom companies, then this bill doesn't give anything away.

[J. Michael Neal]

This compromise is not just a disappointment, it is an indicator of whether he will roll back the powers the executive has accrued under George Bush.

I don't see any particular reason to think this. It might be an indicator of that, but it could just as easily be that this isn't the way that Obama wants to go about revealing any of this, since his opposition wouldn't make any practical difference as to whether the bill passes. We don't know, and we aren't going to know until some time next year.

[kris]

J.M Neal (I hope you don't mind the abbreviation),
1. The FISA issue is really an issue of the limits to executive power. I am not a lawyer, but a very excellent one agrees with me on this:
http://balkin.blogspot.com/2008/06/why-obama-kinda-likes-fisa-bill-but-he.html
This bill is not simply about a bunch of companies being punished for breaking the law (as in a just world they should), or a hypothetical "discovery" process, but much more importantly, it is about the ability of the executive to carry out surveillance of people.

2. I have heard this line "his opposition won't make any practical difference" once too many times during the primary, on important issues such as this one, when he on previous occasions conveniently absented himself or kept silent until the deeds were done. I don't believe it at all, especially now given that he is effectively the leader of the democratic party. His opposition *would* have counted here, and probably made the difference between this capitulation and no bill being passed.

Simply because he is a democrat does not mean he does not have a power lust like most politicians.

3. There is absolutely reason to believe he will do anything different as president. If anything, he will have even more freedom to act in this fashion, not to mention the fact that the temptations of power are greater under such circumstances. The only grounds are a belief that he will do the "right thing", which are clearly flimsy.

[Nombrilisme Vide]

If what you want is to know what happened, rather than punishing the telecom companies, then this bill doesn't give anything away.

Call me an old-fashioned fuddy-duddy, but you know, I'd like to punish the telecoms. I may be cynical and untrusting, but I tend to think that the only way to discourage corporations from doing reprehensible things of this sort is to demonstrate that there will be consequences for illegal actions.

As to Obama, my initial reaction to his silence, and now this weak-kneed statement of civility that promises nothing but presents him in a flattering proactive posture was a combination of Hilzoy's point two and three. Namely, he is (unsurprisingly, inevitably) a coward and a skulker, and doing exactly what comes naturally to a centrist Democrat. I'm not surprised, nor even disappointed... but then, that's mostly a testament to low expectations. Platitudes expected, platitudes received.

[Nombrilisme Vide]

(IOW, what Kris said.)

[Jesurgislac]

Well, there is one very obvious reason why Obama will support the FISA bill:

It will ensure he has the same powers Bush claimed for warrantless wiretapping.

And it will ensure that, if he is going to review Bush's executive orders, he won't ever have to consider having to charge the previous President with multiple felonies for which he can be tried in a US court, which would be both embarrassing and fairly inevitable: Bush actually confessed to warrantless wiretapping, he hasn't got the Reagan option.

It makes no political sense at all for Obama to oppose the bill, and he's shown no signs in the past that he considers this to be an important, deal-breaking issue. Dodd and Kucinich are the only two Presidential candidates who did, as I recall.

Further, like Tony Blair after 2003, Obama's key advantage electorally is that he's way better than the alternative, and he knows it. He doesn't have to stand up for principles which he may or may not even believe in: he's got the vote of all sensible people anyway because, bad as this is, Obama's still better than McCain.

[brent]

Third, he's a politician. He's going to disappoint us.

I have been reading this as a defense of Obama on this issue for the past few hours. Here is the thing: I already disagree with Obama on a number of things - ethanol subsidies, his opposition to gay marriage etc. This issue is different. It is about a basic respect for the rule of law and the limitations of power which he is quite likely to hold. Moreover, the arguments fro why he had to take this position are weak and basically cowardly. He only required a small amount of courage for a strong statement against this POS "compromise" and he couldn't be bothered to offer even that. Why should we expect something different from him when he is President and the stakes will be even higher.

He is absolutely on the wrong side of this and I am going to find it hard to let this go. He can count on my vote because hey, what real option do I have? My time and my money are another thing. My enthusiasm for his candidacy has dropped several notches.

[Nell]

KCinDC: I imagine the Bush administration is and will be working overtime to make sure that all incriminating evidence is destroyed before January 20. This administration could leave the sparsest historical record ever.

Just another reason why impeachment proceedings should have begun in 2007: to preserve documents and evidence.

[kris]

Nell,
There was (and is) no real hope of such proceedings occuring. This is because a lot of George Bush's most egregious violations of civil liberties occurred with the silent complicity of prominent democrats. As Prof Balkin puts it in the context of surveillance, this is the "bipartisan" route to a police state. The impeachment of Pres. Clinton served to invalidate this recourse as a means of controlling the executive, and the democrats have made sure that impeachment has been effectively defanged as an option, by their inactivity in the last seven years. A future President Obama or McCain can now break the law with impunity and few questions asked. The argument will be basically .... (previous administration) also did it, so there is nothing out of the ordinary here ...etc.

This is really cynical and pessimistic, but the last several years have not given me reason to believe otherwise.

[John Ballard]

The whole mess is a steaming pile of you-know-what. This why we shouldn't speak of politics and principles in the same breath. This at FiveThirty-Eight.com seems about right to me.

Was he really going to throw Nancy Pelosi under the bus and pick an intraparty fight when she was as instrumental as anybody else in Washington in getting him the nomination? Was he really going to run afoul of the Blue Dogs when they are probably his swing voters in passing some version of national health care legislation?

This was certainly a political decision on Obama's part -- but not necessarily one that had very much to do with his own electoral prospects. The FISA issue simply isn't high-profile enough to register at the national level. ...

[Sara]

I don't understand what all the fuss is about Obama's statement. To me it seems like a pretty typical case of working within the system to rise up through the system in order to change the system. Is patience such a rare quality in a politician that we don't recognize it anymore and misperceive it as cowardice?

Prioritizing the present and the future over the past--with an end date in mind for this prioritization--is hardly a glaring warning sign of ethical fluidity or weakness. It's basic triage.

He doesn't want to try to fix everything from the floor of the Senate. That's why he's running for President. I'm OK with that approach.

[Dan]

Hi hilzoy. Yesterday's "yes" votes are here, along with home page links.

[Anthony Damiani]

I was hoping he'd at least make it into office before breaking our hearts.

[brent]

I don't understand what all the fuss is about Obama's statement. To me it seems like a pretty typical case of working within the system to rise up through the system in order to change the system. Is patience such a rare quality in a politician that we don't recognize it anymore and misperceive it as cowardice?

The point is that what Obama did today was explicitly reinforce that system. He really didn't need to. He could have, at the very least, released a statement like Feingold's or Leahy's saying that he did not think the bill did enough to protect civil liberties or accountability and that he was going to vote against it. I doubt it would have cost him very much to stand up to President 24% on this but he decided not to take the risk. Better to allow the shredding of the 4th Amendment to proceed apace.

His statement, for all its lame qualifications, absolutely supports the bill as it stands. In doing so, it endorses the so called compromise, which he knows full well is no compromise at all but a complete capitulation.

The bit about trying to strip immunity is a ridiculous "fig leaf" that is trying to offer some cover for his decision to support it. In every respect, this is politics as usual.

What some people haven't grasped yet is that Obama showed us something today about what sort of politician he plans to be. His support for constitutional issues will be weak and qualified when faced with the shibboleth of "terror." You can take that to the bank.

I will still do my best to get him elected but this was a real blow to my enthusiasm for this guy. This was political cowardice, pure and simple, and there is really no good way to spin it.

[MandyW]

I'm with Hilzoy on this. In a democracy, unelected activists are free to take extreme, uncompromising positions. They succeed insofar as their arguments convince the majority of the people of the correctness and importance of their views (e.g. abolitionists like William Lloyd Garrison). Thus, they can transform unrealistic ideals into practical possibilities.

Elected politicians, otoh, MUST compromise to reflect the mainstream of public opinion. (What's the point of democracy if elected leaders pay NO attention to the "will of the people"?) That means the reforms they can accomplish are by definition less sweeping than what outside activists would prefer, but at least they can actually accomplish something (e.g. Presidents like Abraham Lincoln).

For democracy to work, we need BOTH outside activists AND elected politicians. It's silly for activists to denounce ANY deviation by a politician from their view of what's "perfect" as a sellout. It's equally silly for politicians to dismiss ANY deviation by an activist from their view of what's "practical" as not worth considering.

Yes, I'm disappointed at the stance that the Dems, including Obama, are taking on the FISA Act. I assume it's because they fear that a stronger stand would encourage 527's to pop up to attack them, citing FISA as proof that they're "soft on terrorism".

Sadly, imho, such 527 attacks would probably be effective. It could make it a lot harder for Obama to get elected and/or for the Dems to get a large enough majority in Congress to actually accomplish anything on things like Health Care after the election.

As for Obama's "power" as the leader of the Democratic party, let's get real. As Hilzoy notes, these are DEMOCRATS, best described by Will Rogers: "I'm not a member of an organized party. I'm a Democrat."

Even if Dems were less prone to self-destruction, it's awfully naive to assume that any party's PRESUMPTIVE nominee is capable of dictating what the party's going to do on a controversial issue. Especially one like Obama, who only recently eked out a victory by a VERY small margin, and has not yet been FORMALLY nominated as the Democratic candidate.

If Obama tried to throw his weight around NOW, it would likely trigger nasty intra-party fights that could blow up at the convention in August and result in the Dems not only losing the Presidency, but diminishing their majorities in Congress.

Those of us who've always considered Obama to be a flawed human being (just like all the rest of us) are not "shocked! shocked!" to find out he's not perfect.

[KCinDC]

encourage 527's to pop up to attack them, citing FISA as proof that they're "soft on terrorism"

That's going to happen regardless. He already has FISA votes they can use that way, so it's not clear to me that this one makes the risk significantly worse.

But I agree that Obama doesn't have as much power as some people seem to think. Congress is hardly going to fall in lockstep behind him -- they won't even do that when he's president.

[brent]

Elected politicians, otoh, MUST compromise to reflect the mainstream of public opinion. (What's the point of democracy if elected leaders pay NO attention to the "will of the people"?) That means the reforms they can accomplish are by definition less sweeping than what outside activists would prefer, but at least they can actually accomplish something (e.g. Presidents like Abraham Lincoln).

Again, there is no compromise here. That is the point. Despite the attempt of Pelosi and Hoyer and Obama to pretend otherwise, the truth is that Bush and the Republicans got everything they wanted out of this and the "activists" got nothing.

Now all of that cannot be placed at Obama's feet. I agree that the notion that he could personally have stopped this are fanciful at best. But the idea that voting against this was going to be politically harmful is just as fanciful. There is not some groundswell of support for this crappy bill. The people are not clamoring for a rewrite of FISA and by giving in with this sort of token resistance on one portion of the bill, he is only reinforcing the image that Dems cave at any sign of conflict.

[AWH]

"What some people haven't grasped yet is that Obama showed us something today about what sort of politician he plans to be."

I think he more told us what kind of candidate he plans to be: a winning one. The Presidenting comes later.

Plan A:
(1) Win
(2) Fix Stuff

Plan B:
(1) Unnecessarily differentiate yourself from McCain on "protecting America" in the minds of just the semi-dimmish people you need to reach in order to win
(2) Make Race Closer Than It Needs to Be
(3) Maybe Win
(4) Hopefully fix stuff.

I'm for A.

[hilzoy]

Balkinization seems to be in the process of providing exactly what I wanted in the way of an analysis of the bill. Alas, they've only gotten as far as a good overview of why people thought FISA genuinely needed fixing, but a guide to this bill is promised for tomorrow.

[brent]

I think he more told us what kind of candidate he plans to be: a winning one. The
Plan A:
(1) Win
(2) Fix Stuff
Presidenting comes later.

Based upon what? What makes you believe that he is planning to fix anything with regard to this? Was it the fact that he endorses its necessity? What about the part where he promises to use his newly granted powers as President wisely?

You're rationalizing. I get it: winning is the most important thing of all. What I don't get is why you believe that anything will be different once Obama is President and the political stakes are even higher and the political calculus becomes even more complex. Nothing about what he did here suggests a commitment to changing our discourse on civil rights versus the GWOT. Nothing about what he did suggests that he intends to do anything except cave when faced with the fact that bullies will call him weak on terror. Of course this will certainly happen anyway and his posture on this has not served Democrats well in the past.

I believe your faith is badly misplaced but we will both have a chance to find out soon enough, one way or another.

[Jesurgislac]

To me it seems like a pretty typical case of working within the system to rise up through the system in order to change the system.

No: it's a pretty typical case of looking at the powers available if you don't change the system, and deciding not to change the system.

Once this bill passes, the President of the United States will be a power above the law, with authority given to him by Congress to command others to break the law.

Why would anyone suppose that anyone who was ambitious to become President of the United States would be ambitious to reduce the powers of the position?

Obama's still better than McCain, and those are the only two options for November. Of course, it still seems likely to me that Obama won't be allowed to enter the White House in January, regardless of how many people vote for him in November. That Obama also wants to rule by extra-legal fiat, just like Bush, won't make Republicans love him any better.

[radish]

I have no idea why someone that thinks that the Bush administration is going to shred all of the relevant documents before the next President takes office would think that there is any chance that they wouldn't shred them before being required to turn them over for discovery.

I mean no disrespect by this, but that simply suggests that you haven't thought it through.

The Bush administration is protected in a way that the telcos are not. The White House can get away with shredding some documents and over-classifying others, because, well, impeachment is off the table and the Democratic nominee says that warrantless wiretapping is necessary to save us all from the legitimate threat posed by scary [foreign] brown people.

The telcos can, of course, shred and destroy their own records as well, but they would be exposed to a very different kind of jeopardy if they did.

Thus the need for civil proceedings. The point of which would be a) that some dots can be exposed and connected (Pithlord's and CharleyCarp's delicate sensibilities be damned ;-) and b) bringing money into the mix, which can be helpful in situations like this. This isn't about revealing documents that the WH can already conceal. This  is  was about preventing everything else from being concealed forever.

But now that our future (Insha'Allah) President has explained that compromise is "too important to delay," and that he will "carefully monitor the program [and] review the report by the Inspectors General" all is well at last.

Look to future, fellow Americans, not to the dark days behind! Join with us and march forward into the light! What could possibly go wrong with a committed progressive liberty-loving patriot like Barack Obama at the helm?

[hilzoy]

Jes: Obviously, I'm not the least bit happy about this. But I don't see any particular evidence that Obama wants to rule by extralegal fiat.

There are a lot of possible explanations for this. He counted the votes, figured he couldn't stop it, and didn't want to both hand McCain a weapon and look weak, when he couldn't actually keep the bill from passing, for one. I don't have the slightest idea whether this is true, but by the same token, I don't have any reason to assume that it's false, and see no reason to leap to conclusions about his motives, when there are a gazillion versions of them that might be true.

[KCinDC]

Jes, what happened to your idea that beating McCain was the most important thing and therefore we shouldn't jump into attacks on Democratic candidates that could contribute to their losing the election?

[Jesurgislac]

But I don't see any particular evidence that Obama wants to rule by extralegal fiat.

Obama is actively supporting a bill that will mean that, if he gets into the White House next January, he can rule by extralegal fiat: I'd say that's fairly clear evidence that this is what he wants.

You could say it wasn't evidence if Obama had simply decided he was going to leave the issue alone. But he didn't: he spoke in favor of the President of the United States, a position he hopes to hold next January, having the right to tell corporations to break the laws with impunity.

I still think he's better than McCain, mind. Nor would I argue that any of the other candidates except Dodd or Kucinich are any better in this respect. But you don't get anywhere if you don't acknowledge that Obama has just put himself in the camp that argues the President is above the law.

[socratic_me]

Jes,

I am unhappy with the decision today, but in reading the second paragraph of the excerpt hilzoy posted, I really don't understand how your claims hold up. I know you disagree with his words in that paragraph, but that doesn't mean you can claim they don't exist. Isn't there a real reason to think that he honestly believes that the bill, stripped of immunity, addresses the wrongs that have occured or at least provides a means of doing so?

[stonetools]

I know I'm in the minority here, but this is pretty small beer. To read some commenters, this bill passing means we are two steps away from the secret police coming for us in the middle of the night. I don't see it that way. Obama, as a politician, understood that he he had to pick his battles and try to avoid the dsreaded " soft on terrorism" smear. He did what he felt he had to do. The purists don't like it , but they are'nt running for election.
Once he's President, he can always try to go back and fix things.

[Prodigal]

Has Clinton issued any statements about this? I'm trying to see what her stance is on it, but so far I can't find anything.

[cleek]

you are all overreacting.

his statement is fine, given that it makes no sense to try to split the party in two, this close to an election, and the fact that it's going to pass with or without his vote. what is he supposed to do - lambaste and alienate the Democratic legislators he'll need should he actually win it, over something that is, again, going to pass anyway?

[Nombrilisme Vide]

Once he's President, he can always try to go back and fix things.

Yes. He can. But to date he's given no reason beyond hollow platitudes for us to believe he will. This is one step closer to giving us reason to believe he won't.

[Nombrilisme Vide]

cleek -

One reason that we all know this is going to pass is because we all know this is going to pass. Why stick your neck out needlessly and futilely? Why fight the inevitable? Et cetera, ad nauseum.

[brent]

what is he supposed to do - lambaste and alienate the Democratic legislators he'll need should he actually win it, over something that is, again, going to pass anyway?

Does that really strike you as the only option here? A statement that he would vote against it because it does not adequately protect civil rights or contain enough accountability would be nice and there would certainly be no lambasting required. If nothing else, it seems pretty clear to me that he certainly didn't need to offer a statement of support for the bill but that is what he did.

[cleek]

One reason that we all know this is going to pass is because we all know this is going to pass.

it's only going to take one or two Dems, since the Rs are likely to all vote for it.

Why stick your neck out needlessly and futilely?

a fine question.

[cleek]

Does that really strike you as the only option here? A statement that he would vote against it because it does not adequately protect civil rights or contain enough accountability would be nice and there would certainly be no lambasting required.

frankly, i don't think that would satisfy people. after all, he explicity said he'd try to remove the immunity stuff from the current bill and you called that a "ridiculous 'fig leaf'". it doesn't really look like you're about to take him at his word.

[radish]

But I don't see any particular evidence that Obama wants to rule by extralegal fiat.

Why would you require particular evidence that Obama is exactly like practically every other human on the face of the planet?

Also...

May I point out (in the context of your disagreement with Digby about whether Obama was a participant in the compromise process) that from Obama's POV this (plus the inevitable just-before-recess Senate votes) is pretty much the best possible outcome.

Ability to score political points with low-info voters for trying to preserve civil liberties? Check. Ability to score political points with low-info voters for protecting the nation? Check? Existing dubious FISA-based capabilities preserved and reaffirmed by congress for use by future executives? Check. Precedent for executive authority to protect private entities which break the law on the executive's behalf? Check.

Civil liability (which is difficult to control) removed from the equation? Check. Criminal liability (which is easy to control and gives you leverage with the telcos and the previous administration and any hapless congresscritters like Jello Jay who might have signed off on previous lawbreaking) left open as an option? Check. Opportunity to Sistah Souljah the ACLU and the DFHs if it becomes necessary later on? Check. Chits from his colleagues who want telco immunity, as long he doesn't put up too much of a fuss about it? Check. Previous executive and congress take blame for expanding executive power? Check.

The only downside is the pushback from the blogosphere and a few cranky civil libertarians, which will cost him some money and probably a bunch of volunteers, but not nearly enough to worry about. In fact the only "wrong" outcome now that the bill is out of the House would be if somebody succeeded in stripping out immunity. In which case he can just as easily take credit for succeeding as express his sorrow at having failed. Immunity is really Hoyer's and Pelosi's and Bond's and Rockefeller's (and Rush's and Engel's and Feinstein's and yadda yadda yadda) problem, not Obama's.

Finally...

To read some commenters, this bill passing means we are two steps away from the secret police coming for us in the middle of the night.

I hate to break this to you, but according to the Bush administration the secret police are already allowed to come for us in the middle of the night. The controversial question is not whether the Obama administration will make the same claim (of course they won't), but whether they will repudiate, renounce, and thoroughly overturn that claim. Not whether they will take us further down the slope, but whether they will take us back up.

Once he's President, he can always try to go back and fix things.

Yeah, what could possibly go wrong?

[brent]

frankly, i don't think that would satisfy people. after all, he explicity said he'd try to remove the immunity stuff from the current bill and you called that a "ridiculous 'fig leaf'". it doesn't really look like you're about to take him at his word.

What does his word have to do with it? I am talking about the fact that he has come out in support of this bill. He didn't need to. Your imaginary scenario contemplating Obama's potential responses to this fiasco did not include the perfectly reasonable possibility of him simply not supporting it. Your attempts to predict whether or not that would "satisfy people" are completely irrelevant to that point.

Moreover, I called his statement on stripping immunity a fig leaf because thats what it is. He knows full well, as I suspect you do, that immunity will not be stripped from this bill. Reid has said as much. If the supporters of this bill didn't already have the votes including immunity, we wouldn't even be having this discussion.

But whatever. His future valiant attempts to remove immunity notwithstanding, he will vote yea on this bill regardless of whether it includes immunity or not, which it most certainly will. If he did not intend to, he would have said just that. He quite deliberately avoided doing so. If you are really hanging any hope on the idea that anything he does will effectively remove immunity from this bill, you have a disappointment coming next week.

[cmd]

the best candidate indeed. And also the most well funded in the history of the country. One with a 50 state strategy.

[Karoli]

I was initially furious with Obama for his stand on FISA. Livid. I was considering cutting off all future donations, etc., etc.

And then I went out to dinner and heard eight people express absolute support for it, purely because the Bush message of fear, uncertainty and doubt is so deeply ingrained in them.

Until the fear lifts, fighting these kind of battles guarantees Obama will lose the election. He needs to win first. I'm pragmatic enough to accept it, even if I don't like it. It makes me want to get him elected that much more, because the climate in this country isn't going to change until the fear factor clears out the smoke.

[Jesurgislac]

socratic_me: Isn't there a real reason to think that he honestly believes that the bill, stripped of immunity, addresses the wrongs that have occured or at least provides a means of doing so?

Obama's supporting a bill that includes immunity. There is no real reason to suppose that he honestly wants immunity stripped out of the bill if he definitely votes for a bill that includes immunity for corporations that obey the President's instructions to break the law. If he believes that in January he will be President, then he knows that this bill gives him legally the right Bush has claimed extra-legally, to rule above the law.

stonetools: To read some commenters, this bill passing means we are two steps away from the secret police coming for us in the middle of the night.

You are not "two steps away". Legislation has already been passed which gives the President the right to declare you a war criminal on his say-so, and have you arrested and detained without charge and without the right to challenge why you have been detained, indefinitely.

cleek: His statement is fine, given that it makes no sense to try to split the party in two, this close to an election, and the fact that it's going to pass with or without his vote. what is he supposed to do

Well, he could take a principled stand to support the US Constitution.

lambaste and alienate the Democratic legislators he'll need should he actually win it, over something that is, again, going to pass anyway?

What will he need the Democratic legislators for? He is by this claiming the right to rule above the law should be enshrined in legislation. A majority of Democratic legislators appear to agree.

This view may be unpopular with the voters - you know, the Americans with the right not to be spied on by their government without a warrant - but Obama is still a better option than McCain, so people will likely vote for him anyway. Especially as the whole issue tends to be obfusticated in the media. Why indeed should rights that are supposed to be guaranteed to Americans by the US Constitution be regarded as more important to Obama than the good opinion of senior Democratic legislators?

[cleek]

Your imaginary scenario contemplating Obama's potential responses to this fiasco did not include the perfectly reasonable possibility of him simply not supporting it.

you are completely right; i failed to acknowledge your preferred impossible scenario, and instead illustrated a different, but equally impossible, scenario. there are an infinite number of equally impossible scenarios i also failed to discuss.

i'm not sure how useful this fact is.

Moreover, I called his statement on stripping immunity a fig leaf because thats what it is. He knows full well, as I suspect you do, that immunity will not be stripped from this bill. Reid has said as much.

if that's the way it works out, then so be it.

since he apparently supports the rest of the bill, there is only so much Obama can do as a Senator. he can offer amendments, etc. but i just can't see him leading a filibuster (for example) over such an esoteric issue, as the nominee, in the middle of an election.

and when you get right down to it, we don't need to bring AT&T to court to know that Bush broke the law and that Congress likely abetted him. that much is clear enough already. and the Dem leadership has given Bush complete immunity. the real problem is much bigger than telco immunity.

If the supporters of this bill didn't already have the votes including immunity, we wouldn't even be having this discussion.

frankly, i agree. so, i'm wondering what all the noise is about...

anyone here think you're going to change enough Senate votes to kill this ?

[cleek]

What will he need the Democratic legislators for? He is by this claiming the right to rule above the law should be enshrined in legislation. A majority of Democratic legislators appear to agree.

oh for fnck's sake. get a grip.

[Jesurgislac]

the real problem is much bigger than telco immunity.

The real problem is bringing Bush to book for the crimes he's admitted to committing.

With telco immunity, it becomes impossible to bring Bush to book.

My doorkey is much smaller than my door, but losing my doorkey is the real problem: without it I can't get my door open.

Obama doesn't have to support this bill. He's chosen to do so. This bill empowers him, as President, to order others to break the law and not be prosecuted for it. Get a grip, Cleek: this is the situation, that's why it matters that Obama in particular is supporting the bill.

[Joe Klein's conscience]

To those who say Obama is voting for this mess because he'll get labeled as soft on terrorism otherwise haven't been paying attention. The right will try to paint him as soft on terrorism no matter what he does. He'll vote for this POS bill in the upcoming week and they'll still try to paint him as soft on terrorism. So that dog doesn't hunt.

[nicteis]

You are not "two steps away". Legislation has already been passed which gives the President the right to declare you a war criminal on his say-so, and have you arrested and detained without charge and without the right to challenge why you have been detained, indefinitely.

Thanks to Boumedienne, the President only has the right to do that for up to six or seven years, not indefinitely. A McCain presidency, of course, guarantees that Boumedienne will be overturned.

Granted, six years is a long time. With sleep deprivation, being kept naked in the cold, and stress positions - all those tricks McCain has said he wants to keep in the President's toolbox, so long as it's not the military applying them - they would probably seem even longer.

Obama has shown himself to be craven and unprincipled, like 90% of Washington and 100% of those with any remote hope of being nominated by a major party. I'll still take one from column O over one from column McC.

[brent]

you are completely right; i failed to acknowledge your preferred impossible scenario, and instead illustrated a different, but equally impossible, scenario. there are an infinite number of equally impossible scenarios i also failed to discuss.

What is so impossible about Obama simply not supporting the bill? The notion that he could simply vote against it and make a statement to the effect that he thought it did not include the proper accountability is not some far fetched reality not matter how determined you are to pretend it is. It is, in fact, exactly what a number of Democratic Senators will be doing next week. I honestly don't understand what you are trying to argue here.

since he apparently supports the rest of the bill, there is only so much Obama can do as a Senator.

It should not be deemphasized that the fact that he apparently supports the rest of this awful bill is also incredibly disappointing. But to repeat myself, I am not sure why you believe otherwise, but he is quite capable of simply voting against this bill. Bills come up all the time that contain provisions that individual Senators disagree with. Often what they do is vote against it and send a press release explaining their vote. Why you find that some sort of impossible fantasy of legislative strategy is a mystery to me.

and when you get right down to it, we don't need to bring AT&T to court to know that Bush broke the law and that Congress likely abetted him. that much is clear enough already. and the Dem leadership has given Bush complete immunity. the real problem is much bigger than telco immunity.

Knowing that the Administration broke the law and knowing the details of that lawbreaking so that some sort of public accountability can be assessed are two entirely separate things. This bill kills the possibility of the latter because going at the telcos was the only realistic way of bringing the details about this out into the public.'

frankly, i agree. so, i'm wondering what all the noise is about...

I am not sure which noise you are talking about. If you are talking about our particular arguments with respect to the immunity issue then it is simple. You mildly scoffed at my suggestion that Obama's talk about stripping the immunity provision was just political theater. Now you seem to be arguing that of course its political theater, so what am I getting all worked up about, right?

anyone here think you're going to change enough Senate votes to kill this ?

No I don't. Why is that relevant to how we should respond to what we consider bad law and policy? I also do not think anything I do will have much positive effect in Darfur. Should I shut up about it?

[cleek]

The real problem is bringing Bush to book for the crimes he's admitted to committing.

it will not happen. Pelosi has made that clear.

Obama doesn't have to support this bill. He's chosen to do so.

the bill is bigger than the immunity provision.

This bill empowers him, as President, to order others to break the law and not be prosecuted for it.

no, it doesn't. and it can't. it gives a specific set of companies immunity for a specific set of issues .

[nicteis]

Obama doesn't have to support this bill. He's chosen to do so. This bill empowers him, as President, to order others to break the law and not be prosecuted for it.

That's true only if you assume that Republicans would be as timid as Democrats about impeaching Obama. Remember, our legislative majority probably disappears in 2010, when the full-bore Bush recession kicks in, and gets labeled the Obama recession.

Atrios today makes it clear he doesn't share that assumption. You may think Obama is foolish enough to share it. He's not.

IMHO his motivations must be based on the politics of the season, not on putative powers he would be crucified by press and GOP for actually using once in office.

[russell]

I'm trying to understand the substance of hilzoy's objection to Obama's comments. As quoted here, he seems to be saying:

1. FISA needed tweaking to get a better balance between necessary intelligence gathering and civil rights
2. Bush abused the intelligence gathering apparatus and undermined the Constitution
3. The bill ends the illegal program and restores FISA and wiretap law as the means to do surveillance
4. It gives immunity to telecoms, which is regrettable, but I will try remove that from the bill in the Senate

My guess is that his chances of achieving (4) are somewhere between slim and none, but at a minimum he offered lip service to the idea of holding the telecoms accountable. His comments as quoted here actually seem pretty good, to me.

Is there something substantial in the bill that merited a stronger statement?

Believe me when I say that I fully expect Obama to fall short of the high expectations folks have of him, but in this particular case I'm not clear on what in his statement you find deficient.

Please advise.

Thanks!

[Nell]

@cleek: There's been a constant in your reactions to political events and tactics in comments here: they're based in fear. Yet that approach actually strengthens the forces you fear.

Something similar has been going on with the Democratic Party for a long time, too.

[cleek]

What is so impossible about Obama simply not supporting the bill?

in the world in which we live, Barack Obama does support it. therefore any scenario in which he doesn't support it is impossible. he is not one of those Senators who doesn't support it, he is one of those who does.

the world where Obama comes out against this bill is a fantasy. i must be misunderstanding you, because this seems obvious to me.

But to repeat myself, I am not sure why you believe otherwise, but he is quite capable of simply voting against this bill.

where did i say otherwise?

let me put it this way: for Obama, telco immunity is not the dealbreaker you want it to be. and i don't see a point to pretending otherwise.

there is no Obama who doesn't vote for this bill; there is no Obama who comes out and makes speeches against it; the only Obama we have is the one who likes enough of the bill to vote in favor of it.

. Now you seem to be arguing that of course its political theater, so what am I getting all worked up about, right?

i don't think it's theater, i just know there isn't much he can do and he didn't promise to do anything more than that.

This bill kills the possibility of the latter because going at the telcos was the only realistic way of bringing the details about this out into the public.'

Pelosi and the rest of the Dem leadership killed the chance for real accountability a long time ago. it would be nice to have a full and explicit accounting of Bush's crimes, but it's probably not going to happen while he's in office. and there will be no punishment for him in any case.

No I don't. Why is that relevant to how we should respond to what we consider bad law and policy? I also do not think anything I do will have much positive effect in Darfur. Should I shut up about it?

sometimes the engineer in me leaks out and i wonder what the point is to thrashing-out hypotheticals about what reality should be or could be or would be, when reality itself is sitting there, plain as day.

[Model 62]

@Russell, others: The ACLU's bullet points on FISA.

[cleek]

There's been a constant in your reactions to political events and tactics in comments here: they're based in fear. Yet that approach actually strengthens the forces you fear.

do you have an example?

i'd like to disagree, but i'm not really sure what you're referring to.

[Jesurgislac]

1. FISA needed tweaking to get a better balance between necessary intelligence gathering and civil rights.

So the Bush administration said. Now Obama agrees with them.

2. Bush abused the intelligence gathering apparatus and undermined the Constitution

Contradicted by (1). If Obama thinks FISA "needed tweaking", then it's hard to see how he can think that what Bush did was wrong.

3. The bill ends the illegal program and restores FISA and wiretap law as the means to do surveillance

Why on earth does Congress need to pass a bill to end an illegal program? The proper place to end an illegal program are the courts.

4. It gives immunity to telecoms, which is regrettable, but I will try remove that from the bill in the Senate

See (1). Also (2). If Obama is okay with what the Bush administration was doing - as he certainly is: and wants the "illegal program" ended by making it legal, why would anyone suppose he'll do anything about a troublemaking detail?

I am relieved, by the way, to discover that I'm not the only person who thinks Obama is supporting this bill because he wants the powers it will give him: see Balkanization.

As with McCain's claims to oppose torture, the key here is not what high-sounding speeches Obama makes claiming to support the Constitution and civil rights. The key here is how Obama will vote on civil rights. And he's going to vote - assuming he becomes President - to give himself, legally, the same powers of surveillance that Bush took illegally. And whatever he says about trying to remove immunity from the bill, if he votes Yea on the bill including immunity, he has voted to empower himself as President with the legal right to tell others to break the law and not be prosecuted.

I suppose I'm being so emphatic about this because I've seen this before: pre-1997, a lot of us old-time Labour supporters believed that the rhetoric Blair was using was just words he was mouthing to get elected.

Then he got elected, and we discovered that it wasn't.

Granted, the Conservatives would still have been worse than Blair: but face it - if Obama is voting himself increased powers of surveillance and the ability to rule above the law, that's because he intends to make use of those powers.

Of course, he will only use them for Good.

Yeah right.

[Nell]

@russell:

Hilzoy will probably respond on her own behalf, but until then you might want to read today's post from Glenn Greenwald.

It has further links to analysis of the substance of the non-immunity part of the bill, which does not support the characterization in point #3 of your 'shorter Obama'.

[Nell]

There's also Marty Lederman's analysis, and a much more detailed and wonky analysis by David Kris, the Assistant Deputy Attorney General for national security issues in the Dept. of Justice from 2000 to 2003.

Rosy descriptions of a bill that is put to a vote less than 24 hours after its text is released, that was negotiated in secret with pro-Bush Republicans and telecom lobbyists but with little to no participation by pro-civil-liberties Democrats and organizations, and that is greeted by Kit Bond as "a better deal than even [the White House] had hoped to get" should not get the benefit of the doubt.

[Nombrilisme Vide]

there is no Obama who doesn't vote for this bill; there is no Obama who comes out and makes speeches against it; the only Obama we have is the one who likes enough of the bill to vote in favor of it.

Nope, there isn't. Nor is there any relevance in the above statement to the discussion at hand. The point is not if there is an Obama on Twin Earth that does not support the bill, or who will come out against it; the question is: was the Obama that we have justified, when all is said and done, for having supported it, for having not come out against it, and whether we can reasonably extrapolate Bad (or Good) Things about his probable future conduct based thereupon.

Telling us to get over it, ground ourselves in reality, and accept the cold hard fact that centerism is the only way to go is a valid thing to do, but that doesn't mean we can't or shouldn't wholeheartedly ignore your exhortation to this effect.

[Nell]

@cleek: The one that comes to mind without my searching is something you said in the final weeks of the 2006 campaign, to which I said I'd send you home if you were a volunteer in our committee's campaign office.

But this one's right to hand, as well:

there is no Obama who doesn't vote for this bill; there is no Obama who comes out and makes speeches against it; the only Obama we have is the one who likes enough of the bill to vote in favor of it.

Now, after his statement, there's no such Obama.

But it was perfectly natural yesterday morning that the Sen. Obama that voted against the crappy Senate FISA bill earlier this year would vote against this equally crappy one. He might have done so without making any statement before his vote.

Your fear that our unwillingness to substitute his judgment for ours in this matter will hurt him in the fall election seems to be the basis for your comments here.

Operating on the basis of avoiding any risk of a feared outcome makes one willing to abandon almost any principle, value, and intellectual honesty. Sometimes standing up confidently for the most fundamental principles is not only the right thing to do, but the effective thing to do. I'm just saying.

[efgoldman]

All the way back to the beginning of this thread, the unspoken subtext is: Barack and the dems can't be for this *because its what Bush wanted.*

Let me make myself clear: I am no supporter of Bush; I last voted for a repub in 1972, in a state election; I have been angry for all of the last eight years at the mendacity and incompetence of this pres and this administration. I would have liked nothing better than for the dems to impeach the president, the vp, the ag (in spades!) and a whole other bunch of them. But we have to live in the real world. The commenter above who said this is small beer in the electoral context is exactly right.

Dukakis in '88 was an awful candidate. But he used a phrase in his convention speech that Obama should appropriate as his own: Its not about ideology, its about competence. Obama needs to keep pushing: brains, competence, ability. McCain has the dunce vote all locked up. But attacking things *because Bush requested or favored them* gains him nothing he doesn't already have.

Yes. Its about winning the damned election, and sweeping huge congressional majorities along with him. Nobody's going to change anything, even if Obama wins, if the country remains closely split.

[efgoldman]

All the way back to the beginning of this thread, the unspoken subtext is: Barack and the dems can't be for this *because its what Bush wanted.*

Let me make myself clear: I am no supporter of Bush; I last voted for a repub in 1972, in a state election; I have been angry for all of the last eight years at the mendacity and incompetence of this pres and this administration. I would have liked nothing better than for the dems to impeach the president, the vp, the ag (in spades!) and a whole other bunch of them. But we have to live in the real world. The commenter above who said this is small beer in the electoral context is exactly right.

Dukakis in '88 was an awful candidate. But he used a phrase in his convention speech that Obama should appropriate as his own: Its not about ideology, its about competence. Obama needs to keep pushing: brains, competence, ability. McCain has the dunce vote all locked up. But attacking things *because Bush requested or favored them* gains him nothing he doesn't already have.

Yes. Its about winning the damned election, and sweeping huge congressional majorities along with him. Nobody's going to change anything, even if Obama wins, if the country remains closely split.

[Frank]

Cleek- You've said a couple of things here I have to take issue with.

1. That the FISA isn't just the immunity provision. There isn't anything else that couldn't wait until such time as hell freezes over.

2. That there isn't much he can do. Obviously he could stop this, just telling the truth, that Steny Hoyer and Nancy Pelosi are lying about it would probably do the job. He is in a position to get the word out if he wants to

He could also simply refrain from doing harm. Like speaking in support of the bill, and contributing to the fog of disinformation about what it does.

I also have to add that passing yet another law purporting to stop the Bush administration from actions which were already admittedly illegal is pretty close to the acme of Democratic impotence and fecklessness.

[KCinDC]

Contradicted by (1). If Obama thinks FISA "needed tweaking", then it's hard to see how he can think that what Bush did was wrong.

Eh? Practically everyone agrees that FISA needs tweaking. The question is what the tweaks should be. And even if Obama believed that the tweaking should be to provide for exactly what Bush did (which doesn't seem to be the case), that wouldn't mean that he thought it was okay to take those actions without revising the law.

empower himself as President with the legal right to tell others to break the law and not be prosecuted

You said that several times now. Can you explain what part of the legislation you think does that? Obama won't be authorizing surveillance activities that occurred during the period from September 11, 2001, to January 17, 2007. Perhaps the idea is that the legislation sets some sort of precedent that will make it easier to pass a similar bill during an Obama administration, but if you believe that, you overestimate the value placed on consistency by congressional Republicans.

[Nombrilisme Vide]

Yes. Its about winning the damned election, and sweeping huge congressional majorities along with him. Nobody's going to change anything, even if Obama wins, if the country remains closely split.

...and then it'll be about moving forward and not dwelling on the past, uniting not dividing... oh, and not doing anything to threaten the tentative majority in the midterms... then it'll be about making sure he gets re-elected (after more coming together, natch), etc. etc. etc.

There's a problem with this line of reasoning. Greenwald summed it up nicely in Nell's linked piece:

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.

[Nell]

attacking things *because Bush requested or favored them*

This is pure straw. Commenters critical of Obama's statement had a reasonable expectation that he would oppose the legislation for the same, substantive reasons he opposed it in the quite recent past -- not reflexively, because Bush requested or favored it, but because it legalizes expansions of executive power that have previously been illegal, that remain unconstitutional, that are unnecessary, and that constitute bad policy no matter who requests or favors them.

[russell]

Model 62, Jes, and Nell, thanks for the links.

To clarify, my "shorter Obama" was not intended to indicate support for his position. I would be completely unsurprised to find that he is acting either from political calculation, or in order to retain expanded executive privilege for himself should he be elected. Candid, unambitious, and power-averse people tend not to run for President, or if they run, to get as far as Obama has.

FISA stuff and related civil rights issues are basically what got me into current-day politics, lo these seven or so years ago. Among other things, I spent the first day of my honeymoon standing in a crowd at Faneuil Hall in Boston, protesting Ashcroft's lecture to MA law enforcement in support the USA Patriot Act. From that experience, I learned that cops in riot gear are not friendly, and that my wife is very, very tolerant.

My default assumption, until proven otherwise, is that this set of amendments is a steaming pile of crap. I'm just curious to know what, in particular, is deficient.

I'll follow up with the links. I also plan to see what the Federation of American Scientists site has, they are generally very good on intelligence issues, and they have a very deep back catalog of Congressional Research Service papers, which I've always found to be excellent. They're here.

Thanks again -

[brent]

Ok. I think I understand our disagreement now cleek. To clarify: I think Obama is on the wrong side of this issue. His support for this bill lessens individual rights and expands the powers of the Presidency in a way that I find, to say the least, odious. It is not a compromise in any real sense but in fact barely nods in the direction of protecting civil liberties while essentially giving the store away to those who desire a Presidency with nearly limitless power.

Telecom immunity is just the awful icing on a pretty nasty tasting cake from my point of view. His statement regarding attempts to strip said immunity, when he knows full well that will not happen, is really just "throwing a bone" to his activist base knowing that they hate this bill with special emphasis on the immunity. He was thus, quite dishonestly in my opinion, giving them some meager hope that the bill might be slightly less awful. From reading blogs the past couple of days, this seems to have had some limited success with supporters grasping on to his statement on immunity as if it is actually anything but moot.

So, the statement is awful to me because he supports the terrible bill as a whole and because he made it knowing that he eventually will vote in favor of telecom immunity despite whatever mild protestations he offers next week.

You, on the other hand, seem to accept his statement at face value. I don't know how you feel about the bill yourself but you seem to have no trouble at all with Obama supporting the bill or eventually voting for telecom immunity as he surely will next week. That is why the statement is no problem for you. That is where we differ and I am clear on that now.

[Alan in SF]

I'm sure someone has mentioned this, but no, you're not allowed to break the law because the government tells you to. Nuremburg. Thank you.

[radish]

Can you explain what part of the legislation you think does that?

IANAL, but I've read Section 802, which provides that:

...a civil action may not lie or be maintained in a Federal or State court against any person for providing assistance to an element of the intelligence community, and shall be promptly dismissed, if the Attorney General certifies to the district court of the United States in which such action is pending that--

(4) in the case of a covered civil action, the assistance alleged to have been provided by the electronic communication service provider was--

(B) the subject of a written request or directive, or a series of written requests or directives, from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider indicating that the activity was--

(i) authorized by the President; and
(ii) determined to be lawful; or

(5) the person did not provide the alleged assistance.

Unless I'm very much mistaken (actually quite a frequent occurrence), what this translates into is:

Anytime the AG affirms that POTUS told a spy agency to tell a telco/isp to do such-and-so thing that it's being sued for, the court must dismiss the case immediately.

So...

No civil liability when the executive asks you to do something. No criminal liability at the state level. No criminal liability at the federal level unless the executive branch decides to prosecute you.

If the AG does come after you it means that you (the telco/isp) were dumb enough to do whatever illegal thing the executive asked you to do, without having some sort of leverage in case the executive decided to change their mind and prosecute you after all. For having done the thing they asked you to do. So at least you'd qualify for a Darwin Award.

Please feel free to point out where I've gone astray here, because I really do want to be wrong about this.

[KCinDC]

Radish, you omitted the (A) between (4) and (B) in your quote, which restricts the application as I said in the comment you were responding to. As far as I can tell, that section has nothing to do with any surveillance Obama might authorize unless he has access to a time machine.

[Mike]

You may not know the details embedded in this bill, but others do. Here's Greenwald's take on Obama's support:

...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. ...It is absolutely false that the only unconstitutional and destructive provision of this "compromise" bill is the telecom amnesty part...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....

New politics is just a new face behind the same old policies. What ever lead supporters to assert that Obama is progressive or even liberal? Projection? Hope? dishonesty?

[hilzoy]

Russell: I didn't like the part where he supported the bill.

That said, I find the idea (not Russell's, I've moved on) that Obama has suddenly revealed himself not to be progressive peculiar. He is still supporting cap and trade, universal health insurance, and a whole raft of other very, very good and progressive things. It doesn't take projection at all.

[radish]

KCinDC, you're right, and I'm grateful, even if it makes me look like an idiot. I left (A) out on purpose, thinking that (A) and (B) were alternate rather than sequential, but neglected to note the word "and" at the tail end of (4)(A)(ii).

[Kyle]

Digby: "If he didn't come to them and say to get this thing done before the fall, then they came to him and asked his permission. That's just a fact."

I love that last bit.

[Kyle]

Digby: "If he didn't come to them and say to get this thing done before the fall, then they came to him and asked his permission. That's just a fact."

I love that last bit.

[Kyle]

Digby: "If he didn't come to them and say to get this thing done before the fall, then they came to him and asked his permission. That's just a fact."

I love that last bit.

[CMatt]

I appreciate KCinDC's note to radish that (4)(A) limits the immunity to dates between 9/11/01 and 01/17/07 (when terms of this Congress, elected in 2006 began).

I'd still argue that the precedent set by choosing Jan. '07, instead of 01/01/02 or you know, 9/17/01 is pretty significant. It seems to imply that if the Executive can claim to have majoritarian support on an issue, he can ask a private entity to break the law at his request and they can expect to be granted immunity even after the Executive loses(~) that majoritarian support [simply because we'll recognize he had it, and apparently find that sufficient for an immunity guarantee]. This seems to legitimize otherwise illegal requests of private entities by the Executive, so long as (arguably) majoritarian support exists. This, in direct contrast to precedent that says, "no, you must turn that majoritarian support into law first".

The implications of this are not, apparently, a dealbreaker for Obama. That's really not a dealbreaker for me voting for him, either. Still, I'd like to either hear an argument for why we won't be setting a bad precedent here, or why he thinks that the other "modernization" is worth setting one.

Or, I'd like to hear from one of the pragmatists who believe that, while this may be sub-optimal, it is a political necessity - just whose ring is being kissed here? Surely you'd have someone(s) in mind?

[jonnybutter]

I find the idea (not Russell's, I've moved on) that Obama has suddenly revealed himself not to be progressive peculiar.

He hasn't suddenly revealed anything - he's always been as he is. He is a progressive (what I'd call a centerist-progressive), just not as strong a one as we ought to have, and not as strong as some of his supporters want to believe he is. I think he's tempermentally conservative, which can be both good and bad. Having watched him here in IL for several years, I can tell you he's always been like this - very very cautious and extremely calcuating (again, neither all good or all bad). I don't know what his motivations were for supporting this bill, but it doesn't reflect well on him. At the same time it may also have been a brilliant political calculation - Obama's a lot smarter than most any of us about this stuff. But, you know, battles vs wars, dimishing returns... I just think now is not the time to compromise; it's time to win an election and make the other side compromise - something we Dems haven't had the chance to do in a long time, and rarely get *this* kind of opportunity to do.

He'll be a good president, but I don't expect him to be anything other than he is.

[DanSeattle]

So it seems to me that O could have made a powerful statement that leveraged the 24% approval rating. Something about the fourth amendment, the rule of law, and how the best way to ensure our safety is to do it right, every time.

And that's why he doesn't want a retroactive immunity clause, and he doesn't understand why the Republicans sent back a bill with that clause when the American People has already firmly rejected it. He wants a better bill, etc.

The current statement is pretty unimpressive. Sentence for sentence, it comes out supporting the President's frame: "danger! fear! terror! strong executive will protect us!". That's not Obama's strong case.

[Jeff]

OT: The 527s come out to play...

Just yesterday, all the Republican spokepeople were claiming that there no current 527s and "none in the pipeline". I thought it was "cow product" then, and wished that at least Obermann would have said "Yeah, right" when told this song-and-dance.

============================

On Topic: I heard one reason for civil immunity for the telco's: It would make it easier to start criminal proceedings against them. IANAL, but with a civil case, there has to be "standing", right? And, as we've seen in previous cases, getting records that show you've been spied on requires proof that you've been spied on.

Whereas, the AG pretty much has "standing" to start any criminal trial. So AG Edwards notifies the telco's that they're under investigation for criminal acts -- discovery got MUCH easier than it would under civil jurisdiction.

I heard this put forward, but have no clue how much stock to put in it -- I just throw it out there as an concept.

[Anarch]

I'm still trying to figure out why it was that Obama couldn't oppose this bill as giving carte blanche to a bunch of criminals. [Or, if you're feeling more diplomatic, opposing it on the grounds that immunity could be used to cover up law-breaking.] It's a somewhat risky strategy, true, but he got ahead of the issue on Iraq and it's paid off handsomely; where's the drawback here?

[Anarch]

I should add, btw, that I'm not so much interested in why Obama is taking the position he is -- I get that -- but rather why people think he had to. What's the political calculus that says that the nominee has to lead from behind?

[a-train]

And then I went out to dinner and heard eight people express absolute support for it [FISA "compromise"], purely because the Bush message of fear, uncertainty and doubt is so deeply ingrained in them.

Until the fear lifts, fighting these kind of battles guarantees Obama will lose the election. He needs to win first.

He had a chance to lift that fear somewhat by educating voters with his statement and voting to uphold the rule of law. He chose not to. Why? I suppose we may never know. But it really, really sucks.

I thought the whole point of Obama's campaign was educating voters? The "yes we can" politics? A new kind of politics? A politics not based on fear? A politics that respects voter's intelligence?

Very disappointing.

[lugnut]

1) If Obama's got that much pull, how come he can't get all the Blue Dogs to do what should be an automatic endorsement of him? And as Nate Silver points out at FiveThirtyEight, it's the Blue Dogs in swing states who voted for immunity.

2) Anyone who thinks that Hillary would have done better needs to think again: She had her chance in February as likely nominee to whip the Blue Dogs (her allies) into line. Instead, she didn't bother to show up for the vote on the amendment that would have stripped immunity from the Senate's FISA bill. Obama at least did that much, and voted the right way.

[Katherine]

Well, I'm not donating to him until he shapes up. This was a key issue for a constituency without whom he would've likely lost the primaries. He refused, although the political risk to him was negligible. I'll bet you anything big donors don't get jerked around this way; why should a larger # of smaller donors who've probably contributed as much total allow themselves to get jerked around this way?

[Anon]

FWIW: I'm posting as Anon because I'm a campaign staffer (field orgaizer), I sometimes post here (which we're not supposed to do, comment on any blogs or anything like that), and this issue is near and dear to my heart. I'm on break right now, and after this decision from the campaign, I'm considering not going back to work in the general. A bunch of my friends are out working right now, and I can't imagine sleeping on an aero-bed in an unfurnished apt, waking up, and going to work a 15-hr day on behalf of Obama right now. I couldn't do it if I were there today. I don't know if I'll be able to do it in a week or a month or whenever I get deployed.

So yeah, I get all the reasons he may have done this, and the political gain and such. And I still think he has the opportunity to be a great President, and is the best candidate we've had in a long long time (both from my personal experience, which doesn't go very far back, and from my knowledge of electoral politics history). But damn, right now, I'm just depressed by this.

So not to be too naval-gazing, but this is, I guess, the political cost for the campaign, no? That's what happens when you abandon a part of your active base.

Anthony Damiani expressed beautifully what I'm feeling right now up-thread, here

I'd add that I never had an illusions that he'd be perfect, but this, to me, isn't the same as posturing on NAFTA or going back to wearing a flag pin.

[cleek]

Operating on the basis of avoiding any risk of a feared outcome makes one willing to abandon almost any principle, value, and intellectual honesty. Sometimes standing up confidently for the most fundamental principles is not only the right thing to do, but the effective thing to do. I'm just saying.

yes, sometimes it is. and that's why i'll never donate a cent to the DNC. IMO, this isn't one of those times.

[hilzoy]

Anon: I have neither the right nor the desire to tell you what to do, especially since I feel a lot of (what it sounds like) you do. Besides, I suspect that anything I might say is exactly what you;re already going to tell yourself.

But I'm going to keep working my heart out for him. I hate this, but the differences between him and McCain are too huge, and too important to too many people, for me not to.

I thank you for the work you've already done. And -- not that you don't already know this -- but one thing that this really brings home to me is how much it matters to really bring more people into the political process, and get talking to people who otherwise might not either be heard, or find someone they could ask questions to. (The kinds of questions that can help someone get up to the threshold level of background knowledge that you need in order for political conversation to make sense to you.)

I'd imagine that when you work that 15 hour day, you have the chance not just to work for Obama, but to have those kinds of conversations, and help make it easier for all of us to be really engaged and informed. And that makes all the difference in the world.

Easy for me to say; I'm not sleeping on an aerobed. But I'm really grateful to you for what you're doing.

[hilzoy]

Anon: I have neither the right nor the desire to tell you what to do, especially since I feel a lot of (what it sounds like) you do. Besides, I suspect that anything I might say is exactly what you;re already going to tell yourself.

But I'm going to keep working my heart out for him. I hate this, but the differences between him and McCain are too huge, and too important to too many people, for me not to.

I thank you for the work you've already done. And -- not that you don't already know this -- but one thing that this really brings home to me is how much it matters to really bring more people into the political process, and get talking to people who otherwise might not either be heard, or find someone they could ask questions to. (The kinds of questions that can help someone get up to the threshold level of background knowledge that you need in order for political conversation to make sense to you.)

I'd imagine that when you work that 15 hour day, you have the chance not just to work for Obama, but to have those kinds of conversations, and help make it easier for all of us to be really engaged and informed. And that makes all the difference in the world.

Easy for me to say; I'm not sleeping on an aerobed. But I'm really grateful to you for what you're doing.

[cleek]

Telling us to get over it, ground ourselves in reality, and accept the cold hard fact that centerism is the only way to go is a valid thing to do, but that doesn't mean we can't or shouldn't wholeheartedly ignore your exhortation to this effect.

centerism ? where did i say anything about that ? sheesh. at least argue with what i write - don't go inventing things for me to say.

--

1. That the FISA isn't just the immunity provision. There isn't anything else that couldn't wait until such time as hell freezes over.

well, sure. and that can be said about most bills. but Obama's not responsible for letting these things come to a vote, the party leadership is. and i don't think Obama controls them.

2. That there isn't much he can do. Obviously he could stop this, just telling the truth, that Steny Hoyer and Nancy Pelosi are lying about it would probably do the job.

well, i disagree that he could, and that he should; and obviously he doesn't want to anyway.

--

You, on the other hand, seem to accept his statement at face value. I don't know how you feel about the bill yourself but you seem to have no trouble at all with Obama supporting the bill or eventually voting for telecom immunity as he surely will next week. That is why the statement is no problem for you.

precisely. and it also doesn't hurt that i don't think he could stop it even if he wanted to. i think the fight is too big for one Senator (unless that Senator was Majority Leader) and i'd rather Obama save his punches for the election.