19 Responses to “Obama Explains FISA Position”

1. Pete Abel Says:
   June 26th, 2008 at 7:12 am

   Bravo, Justin. While I’ve had my doubts of late about Candidate Obama, I’m with you on this one; I think he made the wisest choice possible.

2. gerryf Says:
   June 26th, 2008 at 7:52 am

   …and when the next president decides the law does not apply to him?

   I already went through my problems with this legislation in a previous post so I won’t go over that again, but since you brought up the telco immunity, I will go into some more detail there (after ignoring that part)

   What Bush did was illegal and there are no repercussions for anyone. Granting immunity to the Telcos ensures that the next time someone in government wants to do something illegal it will be done.

   Sadly, in a government drunk on power the only recourse is to punish those complicit in the crimes. Remember, Qwest communications told Bush to take a hike when they came to them with a request to eavesdrop on citizen’s phone calls.

   By granting the other Telcos immunity, what reason is there for companies in the future to NOT comply with illegal requests. If I am Qwest, I am pretty pissed right now after I did the right thing and everyone else did the wrong thing and got away with.

   Finally, these lawsuits against the telcos are not intended soley for the purpose of punishing the telcos–like any good prosecution, you start with the small fish and get them to roll over on the big fish, or you use smaller cases to discover information or epose corruption.

   The Bush administration is GUILTY of criminal behavior, but we may never know how far reaching these crimes are if we grant the Telco’s immunity. The phone companies were complicit in the crimes. And MANY members of congress (both DEMOCRATS and REPUBLICANS) were complicit in these criminal acts.

   The real issue with this bill is not national security, it is job security for a bunch of crooks and the Democratic Leadership that has rolled over on this bill is doing so because they know where the skeletons are–in their own closets.

   Shame on Obama and every single one of these people who voted for it….protecting our county my butt; it’s all about protecting their own butts.

   I’m sorry JG, I respect the opinions I read here by all the bloggers, but anyone who supports this bill is completely missing the boat.

3. fisa Says:
   June 26th, 2008 at 8:15 am

   If he wants to change things in washington he should change things. I have no idea why he wanted to go to the center on this issue. Anyway, if he keeps acting like this he’ll lose the election. His base will stay home or vote for a third party.

4. J. Harden Says:
   June 26th, 2008 at 9:27 am

   “That was clearly illegal. This bill fixes that.” Just out of curiosity, if it was clearly illegal, then how/why does the bill “fix” it? If it was clearly illegal, then what was to fix?

5. Tully Says:
   June 26th, 2008 at 9:53 am

   Why, J.Harden, because gerryf says so! Didn’t you get the memo declaring that illegality is determined by assertion and by hatred of those taking the actions asserted to be illegal?

   I am still not clear if the FISA reform version moving through Congress fixes the larger problem with FISA, the idiocy that required that troops in the field get ****ing search warrants (prior to or retroactively) for intercepting enemy communications in the field, because the technology involved relays that communications through a US-based or US-owned server/router.

   If it does not, more of our troops will pay the price of lawyering a war.

6. mw Says:
   June 26th, 2008 at 9:55 am

   Look… ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand. The FISA court works. The separation of power works. We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight, and do not undermine the very laws and freedom that we are fighting to defend. No one should get a free pass to violate the basic civil liberties of the American people – not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed…. We must … set an example to the world – that laws cannot be ignored when it is inconvenient.

7. Tully Says:
   June 26th, 2008 at 10:18 am

   The FISA court works.

   The body of Pvt. Joseph Anzack was found floating in the Euphrates. The bodies of Army Spec. Alex Jimenez and Pvt. Byron Fouty have never been found. Do go tell their families about the wonderfully functional law that requires that troops in the field get ****ing search warrants (prior to or retroactively) for intercepting enemy communications in the field, because the technology involved relays that communications through a US-based or US-owned server/router.

   If the latest “reform” version does not make specific exemption for such situations, we will have MORE Anzacks and Jiminez’s and Foutys. And I do not mean “jump through authorization hoops that run back to Washington and require hours to get approval” exemptions.

8. mw Says:
   June 26th, 2008 at 12:17 pm

   Tully,
   The “Anzack was killed by FISA” story was debunked by the Washington Post last Septemberhere:

   “So we had U.S. soldiers who were captured in Iraq by insurgents, and for the 12 hours immediately following their captures, you weren’t able to listen to their communications,” asked Rep. Heather A. Wilson (R-N.M). “Is that correct?”
   “That’s correct,” McConnell answered.
   In fact, the timeline released this week shows that officials in Washington did not begin seeking the warrant until 10 a.m. on May 15 — more than 86 hours after the three soldiers from the U.S. Army’s 10th Mountain Division were reported captured. Authorities had already received approvals for other wiretaps in the case, the timeline shows. Four U.S. soldiers and an Iraqi interpreter were found killed after the ambush on May 12, and the body of another soldier who was captured in the attack was found on May 23 in the Euphrates River several miles south of the site. Two other soldiers believed to have been captured have not been found, but a militant group has claimed they are dead. Maj. Webster M. Wright III, public affairs officer for the 10th Mountain Division, said in an e-mail that he was unaware of the wiretap discussions that occurred in Washington. “We were given everything at the tactical level that we asked for, to include extra troops, intel assets, aviation, CID investigators, analysts and [human intelligence] specialists,” Wright said.”

   This story was just one more exaggeration and falsehood promoted by the Bush Administration in the campaign to justify increasing the power of the Presidency at the expense of the Congress and the Constitution, and to continue to promote the notion that security trumps civil liberties and rule of law. A position that is also embraced by John McCain and now Barack Obama.

   Even if we accept the meme you are promoting (FISA killed Anzack) as true, (which it is not), it is worth keeping one simple concept in mind:

   Joseph Anczak, Alex Jimenez, and Byron Fouty were soldiers who, like all of those brave souls that serve in the Military, willingly put their lives on the line specifically to defend our freedoms as defined by our Constitution. They are willing to sacrifice their lives to protect the Constitutional freedoms of the United States and for that we cannot thank them enough. However, their sacrifice is in vain, if we here at home choose to willingly abandon our freedoms and the constitution on the alter of political expediency, or even to protect the lives of our soldiers in harms way.

9. J. Harden Says:
   June 26th, 2008 at 12:56 pm

   mw – So the telecommunications companies should be held civilly (perhaps criminally) liable for cooperating with the executive branch of the federal government, after 9/11 and in the execution of the WoT, because they were suppose to reach a different constitutional opinion regarding civil liberties…during a time of war? One can certainly make the argument that wireless taps were unconstitutional, fine, but the telecom companies were to make that determination at the time?

   That is a totally unreasonable burden to put on the telecoms. Tully points out Anzack/Jimenez — do the telecoms become liable to their families if they fail to cooperate and people die? Perhaps they can rely on their strong constitutional regard for the seperation of powers and the 4th amendment in the defense of that lawsuit.

10. Justin Gardner Says:
    June 26th, 2008 at 1:33 pm

    @J. Harden – Bush and his people argued (once they got caught) that it was okay to obtain wiretaps but not report them…even though the FISA court is completely secret. This bill fixes that by restoring the system as it existed beforehand.

    @Tully – There’s a difference between “prior to” and “retroactive” and lumping them together is not appropriate. This bill still allows for retroactive warrants, so the deaths of the servicemen you cited may have been prevented with this FISA bill, but we’ll never know either way. However, there have to be some limitations on obtaining retroactive warrants, yes? This case, however, doesn’t seem to have warranted a “prior to” warrant.

    Again, and for the record, Bush inexplicably failed to get warrants after the fact because I’m sure he and his lawyers were nervous that people would see they were wiretapping without just cause. In other words, they wanted to be completely above the law.

11. mw Says:
    June 26th, 2008 at 4:04 pm

    Oops. My bad. I guess I was a little too quick on the trigger. I meant to put that paragraph in my first comment in this thread in quotations. You see, the words in that comment are not my words, They are the words of Barack Obama. Or more precisely, that was the January, 2008 version of Barack Obama, when his core convictions were based on keeping Hillary Clinton from getting the inside lane on the left.

    The June, 2008 version Barack Obama is now adjusing his core convictions to pull independents/right from McCain:
    

    
    “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.”

    Look at what he is saying here. This is one great big “TRUST ME!”. Obviously Obama understands the FISA compromise does not provide enough prortection under the law, since his answer is that he will personally provide the oversight that the law does not (TRUST ME!). This is exactly what is wrong with this bill, it makes 4th amendment protections optional at the sole discretion of the executive. But we don’t have to worry that we no longer have the protection of the law, because we have the protection of Barack Obama, our next unitary executive.
    Even the February 2008 Version of Barack Obama understood that the desire for security does not take priority over the rule of law, and OBAMA.02.08 was ready to fight for it:
    

    “The American people must be able to trust that their president values principle over politics, and justice over unchecked power. I’ve been proud to stand with Senator Dodd in his fight against retroactive immunity for the telecommunications industry. Secrecy and special interests must not trump accountability. We must show our citizens – and set an example to the world – that laws cannot be ignored when it is inconvenient. Because in America – no one is above the law.”

    That was then (principle and law trump fear and security). This is now (fear and security trump the rule of law) according to OBAMA.05.08 :

    “My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people.”

    Just unbeleivable. Once again Glenn Greenwald nails it:

    The real danger is that those who defend Obama the Candidate no matter what he does are likely to defend Obama the President no matter what he does, too. If we learn in 2009 that Obama has invoked his claimed Article II powers to spy on Americans outside of even the new FISA law, are we going to hear from certain factions that he was justified in doing so to protect us; how it’s a good, shrewd move to show he’s a centrist and keep his approval ratings high so he can do all the Good things he wants to do for us; how it’s different when Obama does it because we can trust him? It certainly looks that way. Those who spent the last five years mauling Bush for “shredding the Constitution” and approving of lawbreaking — only to then praise Obama for supporting a bill that endorses and protects all of that — are displaying exactly the type of blind reverence that is more dangerous than any one political leader could ever be.

12. Justin Gardner Says:
    June 26th, 2008 at 4:20 pm

    If we learn in 2009 that Obama has invoked his claimed Article II powers to spy on Americans outside of even the new FISA law, are we going to hear from certain factions that he was justified in doing so to protect us; how it’s a good, shrewd move to show he’s a centrist and keep his approval ratings high so he can do all the Good things he wants to do for us.

    Once again, Greenwald speculates and confuses the difference between what Bush did and what this bill proposes.

    Listen, I’ll be the first person to call Obama out if he does what Bush did, but his support for this bill doesn’t come anywhere close to that. And as I’ve said before, this bill actually provides more protection for Americans.

    By the way mw, thank you for debunking that soldier story. It definitely didn’t seem like a credible case of having to get consent prior to wiretapping.

13. gerryf Says:
    June 27th, 2008 at 7:53 am

    Yes, “Greenwald speculates”

    I think that is the point we are trying to make as to why this is a bad bill.

    If the FISA bill were written correctly, there would be no room for speculating. The required actions and restrictions would be spelled out and the president–ANY PRESIDENT–could follow them.

    The problem with the original FISA is—THERE WAS NO PROBLEM. The problem was that Bush didn’t feel it applied to him.

    The problem with the new FISA is that it will allow future presidents — ANY PRESIDENTS — to simply say it does not apply to them either.

    And, it allow them to get away with it because it gives those who enable the president — ANY PRESIDENT — who wishes to skirt the law a get out of jail free card.

    It’s pretty simple, really–Qwest communications when approached by the BUsh administration for its illegal wiretapping program (–yes Tully, because I said so–) said, “uh no, sorry, that would be illegal. We won’t help you do that because it is illegal.”

    ATT and Sprint said, “hey, that’s illegal, but we don’t want to piss of the president so whatever you need and civil liberties be damned.”

    I cannot believe anyone can accept this. That the right would stand behind this man is stupefying. There was a time when the right stood for something–they said, “Government should not intrude on the lives of citizens.”

    Now, it’s more about gaining and holding power than principle. People lament the damage of the Republican Party brand–it’s because they gave up principle for power. As long as its adherents continue to support its leaders despite the leaders tossing principle out the window, the party will never revive.

14. mw Says:
    June 27th, 2008 at 8:57 am

    “If the FISA bill were written correctly, there would be no room for speculating. The required actions and restrictions would be spelled out and the president–ANY PRESIDENT–could follow them.” gerryf

    Exactly.

15. Tully Says:
    June 27th, 2008 at 12:47 pm

    This bill still allows for retroactive warrants

    Do link please, Justin, as I am extremely familiar with current statutes and I’ve heard that claim before, only to find it was manifestly FALSE when the actual details of the law were examined. Pat and I dug into this in detail for YEARS and repeatedly pointed out the potential problems, and a “retroactive” provision that still requires that troops in the field on foreign soil in a combat zone have to acquire authorizations from Washington to surveill the enemy does NOT pass muster. See the discussion in the previous linkage–this is not imagination or wingnuttery, this is the absolutely freakin’ INSANE proposal that combat troops in the field on foreign soil must operate under domestic criminal procedures because of the mere possibility that a terrorist’s cell phone call might pass through a U.S.-based or owned network.

    The “Anzack was killed by FISA” story was debunked by the Washington Post

    MW, the appropriate rejoinder to that is “BULLSHIT.” As in “utter and complete bullshit.” But hey, thanks for supporting the troops…FISA was THE proximate cause, START TO FINISH, of combat troops in the field on foreign soil in a combat zone having to ask for permissions from Washington to surveill enemy communications in in the field on foreign soil in a combat zone because they potentially passed through a US-based network/router.

    As the clock ticked away on the lives of those three soldiers, officials had to refer back to the other side of the world and jump through the authorization hoops, losing precious hours that might have saved those three, or at least led to the capture of their Al Qaeda killers.

    WaPo did not “debunk” the story. Indeed, they illustrated the hoops that had to be jumped through to get the permissions, and how much delay FISA caused in getting those permissions.

    Now, no one can say for certain that the delay resulted directly in those deaths, but there is ZERO doubt that FISA caused a near 10-hr delay between the identifying of the correct surveillance target and being able to actually begin that surveillance–by which time it was too late.

16. mw Says:
    June 27th, 2008 at 1:13 pm

    Tully,
    False. The article clearly shows that it was bureaucratic confusion and bungling that created the delay The hoops were not created by FISA. The hoops were self-inflicted and unnecessary under FISA. Plus the timeframe manufactured by McConnell and the administration to try and put the blame on FISA was a fabrication.

    That said, you ignored the larger point raised by this false interpretation of those events. Let me ask the question another way.

    Which of our constitutional freedoms do you think Americans should be willing to sacrifice in order to “support the troops” who are fighting and dying to protect our constitutional freedoms?

    Should we give up our freedom of speech if it helps the troops?
    Should we restrict Americans right to worship as they choose if it helps the troops?
    Should we be surrender our constitutional protections against unreasonable search and seizure if it helps the troops?
    Should we give up habeas corpus, to demand a day in court and face our accusers if arrested and detained, in order to help the troops?
    Should we accept restraints on a a free press if it helps the troops?

    Should we accept tyranny if helps the troops?

17. Justin Gardner Says:
    June 27th, 2008 at 1:23 pm

    @Tully, if you can’t say for certain that the delay resulted in those deaths, then why bring it up as a reason? I realize you have strong emotions about these men losing their lives and that you don’t think there should be any oversight whatsoever for cases that have the appearance of having dire consequences, but you know that just won’t fly.

    Also, the details of the bill can be fond at the link in the post with the words “this new compromise.” However, here is the part about “exigent circumstances”…

    In rare cases, collection can begin while the court considers authorization only if the AG and DNI certify to the court that exigent circumstances exist and critical intelligence could be lost.

    This to me says that collection can begin in concert with contacting the court, especially because the word “exigent” is used. So this may address your concerns, but I’m guessing it’s still not good enough.

    @mw…you cite gerryf’s statement…

    “If the FISA bill were written correctly, there would be no room for speculating. The required actions and restrictions would be spelled out and the president–ANY PRESIDENT–could follow them.”

    As evidenced not only in this thread, but multiple situations where retroactive warrants were needed, the law has to be flexible. However, how one defines “rare” in the new compromise will obviously be completely different than Bush…who deemed all situations as rare.

    In the end, is this bill great? No. But as I’ve stated before, it’s a compromise that allows for both sides to have some things they want, and some things they don’t want. And as I think I’ve demonstrated, there has to be room for not only quick surveillance given that “rare” circumstances have and will arise, but also robust protections for Americans given how blatantly Bush violated our civil liberties.

18. Donklephant » Blog Archive » Olbermann Agonistes Says:
    July 1st, 2008 at 12:27 pm

    [...] Obama flip-flops announcing support for virtually identical FISA “compromise” with Telco Immunity. [...]

19. Donklephant » Blog Archive » “A black mark, not only on Democrats, but on the Congress, and the history of the United States.” Says:
    July 10th, 2008 at 2:52 pm

    [...] am not going to belabor this. We have beat this to death at Donklephant in previous posts here, here and here. Just one point – When smart people on the right, left, and academia agree that this [...]

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