Obama is dead wrong on FISA and telco immunity

Yesterday, the Democrats announced a "compromise" bill on the FISA/telecom immunity debate that was actually quite far from a compromise. It was in fact a total capitulation, effectively granting immunity to telecom companies that aided and abetted the Bush administration in illegally spying on their customers. The only caveat was that telecoms would have to provide evidence that they received written assurances from the Attorney General affirming that Bush believed the program to be legal, written assurances that almost certainly exist.

That's it. If Bush said it was legal, it's legal. Since the Congress certainly doesn't have the balls to investigate the Bush administration itself, these pending lawsuits against the telecoms were our last chance to learn the full extent of the warrantless wiretapping program. And now, as the Democrats in the House and Senate prepare to rubberstamp immunity for corporate criminals, that last chance will be gone.

The worst part of all of this is that the immunity question is just a smokescreen. All of these companies with competent legal departments no doubt negotiated indemnification agreements before giving Bush anything. That means that they have nothing to fear from lawsuits even if they proceeded. So what's the point of this? To cover Bush's ass. Investigations of the telecoms would reveal things that Bush would rather not have revealed.

The Democrats not only gave the Republicans everything they wanted, appearing weak and craven yet again, but they also closed off any possibility of us ever learning the entire truth.

Throughout this debate, Obama has generally been strongly opposed to immunity, and strongly opposed to the President's illegal spying programs. He has not seemed like a candidate willing to accept Bush's transgressions against the constitution, stating that one of his first acts as President would be to review each and every one of Bush's executive orders and decisions, and overturn any that violated the constitution. That attitude is welcome and commendable, exactly what the US needs after years of radicalism.

Just in the past few days, he was sending out the following e-mail:

I have consistently opposed this Administration's efforts to use debates about our national security to expand its own power, whether that was in regard to the conduct of the Iraq war or its restrictions on our civil liberties through domestic surveillance programs or suspension of habeas corpus. It is time to restore oversight and accountability in the FISA program, and rejecting this unprecedented grant of retroactive immunity is a good place to start.

Giving retroactive immunity to telecom companies is simply wrong. Thankfully, the most recent effort to pass this legislation at the end of the legislative year failed. I unequivocally oppose this grant of immunity and support the filibuster
of it. I have cosponsored Senator Dodd's proposal that would remove it from the current FISA bill and continue to follow this debate closely. In order to prevail, the proponents of retroactive immunity still have to convince 60 or more senators to vote to end a filibuster of this bill. I will not be one of them.

This Administration has put forward a false choice between the liberties we cherish and the security we demand. When I am president, there will be no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war. Our Constitution works, and so does the FISA court.

An admirable position.

Yet for some reason, he has not spoken out against this latest capitulation. On the contrary, he has spoken in support of it, and also in support of a prominent Bush-enabling "Blue Dog" Democratic congressman from Georgia, John Barrow, who is facing a possibly tough primary battle from progressive candidate Regina Thomas.

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. . . .

After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act. . . 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.

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.

It's far from clear how he can both support the compromise yet still promise to "work in the Senate" to remove the central premise of the compromise. He should be unequivocal in his opposition to this travesty.

This is an incredibly disappointing move from Obama. He is now, for all intents and purposes, the leader of the Democratic party. It is well within his power to make a stand for civil liberties and the rule of law, and defend them, not only against the Republicans, but also against the cowardice and inexplicable weakness of his own party. He has not, and has in fact chosen the opposite course, making a mockery of his previous stated positions on this issue.

Greenwald is pretty brutal:

Telling Americans that we have to give up basic constitutional rights -- and allow rampant lawbreaking -- if we want to save ourselves from "the grave threats we face" sounds awfully familiar. Obama has obviously calculated that sacrificing the rule of law and the Fourth Amendment is a worthwhile price to pay to bolster his standing a tiny bit in a couple of swing states. The full Obama statement is here.

The fact is that the American public now sees past the standard Republican BS. They will not see the Democrats as weak on national security if they say no to warrantless wiretapping and immunity for law-breaking telecoms. In fact, polls show that Americans are overwhelmingly opposed to both of these things. Polls also show that Congress actually has a higher approval rating among Republicans than Democrats! No wonder; Democrats have a lot of reason to be disappointed in these cowardly and unprincipled idiots they elected to office in 2006. But Republicans have little cause to complain, since whenever Bush stamps his feet, they give him everything he wants.

I expect better from Obama, and he isn't delivering on this issue.