Analysis: Obama’s Argument on FISA

The last thing Obama wants to do is move closer to John McCain and George Bush on issues of constitutional rights.  But take a look at his own rationale for his terrible decision to vote for the FISA bill (TPM, emphasis mine):

Obama on the FISA ‘Compromise’ …

“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.”That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

“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.

“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.

This is crucial, and its great Obama fought for this.

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.

Ok.  So there is no accountability for the President or the Telecoms in the past, but moving forward they are now restricted from freely spying on Americans.  The bill’s supporters essentially carved out what they could with the intention of going back later and pursuing actual accountability for crimes committed.

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.”

I don’t like that.  Its a very Republican argument to make.  Essentially “There are scary bad men so we need to spy on some of you but don’t worry it will be the right ones”.  I don’t like the FISA courts, its just that since Bush ignored them they seem downright transparent and democratic by comparison.  How sad our country is becoming.

So in essence, Obama and the bill’s other Democratic supporters (like Jim Webb) seem to have decided to trade accountability for past actions for assurance that as of this bill’s passing the illegal spying will stop.  Personally I feel this was a poor decision to make, and that this bill should have been used to embarress the politicians who supported giving complete and total freedom to the administration and the telecoms to spy on Americans “above the law”, with no stated intention of “fixing it later”.  But its an understable decision.  However now Barack Obama has another part of his platform whether he acknowledges it or not: “If elected I will hold the Bush administration and the Telecoms responsible for breaking the law, and work to ensure they are fully prosecuted”.  Although I wonder if we just saw that chance sail by?

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