Following up on Hunter's excellent post on why we care about FISA, I want to home in on one part of the whole debacle, and why keeping Barack Obama to his vow to try to strip immunity from the bill is important.
Here's Glenn in an important post on the larger issues behind this bill, and Obama's support of it.
It is absolutely false that the only unconstitutional and destructive provision of this "compromise" bill is the telecom amnesty part. It's true that most people working to defeat the Cheney/Rockefeller bill viewed opposition to telecom amnesty as the most politically potent way to defeat the bill, but 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.
The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home" because "the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power." Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.
This bill doesn't legalize every part of Bush's illegal warrantless eavesdropping program but it takes a large step beyond FISA towards what Bush did. There was absolutely no reason to destroy the FISA framework, which is already an extraordinarily pro-Executive instrument that vests vast eavesdropping powers in the President, in order to empower the President to spy on large parts of our international communications with no warrants at all. This was all done by invoking the scary spectre of Terrorism -- "you must give up your privacy and constitutional rights to us if you want us to keep you safe" -- and it is Obama's willingness to embrace that rancid framework, the defining mindset of the Bush years, that is most deserving of intense criticism here.
Glenn is absolutely right. This is a disaster of a bill designed to expand the warrantless eavesdropping powers of the president, to codify the lawbreaking of Bush/Cheney. He's also right that this doesn't need to happen, there's "no reason to destroy the FISA framework." It seems we have a Congress intent upon doing that, nonetheless. But there's a distinction between those bad provisions and retroactive immunity--immunity can't be undone. A President Obama and a Congress with a larger Democratic majority--if it had the political will to do so--could repeal the changes contained in the bill, except for amnesty. Of course, given Obama's willingness to support those bad provisions, too, that possibility is waning.
However, there's no repeal of retroactive immunity--once it's granted, that's that. The terrible precedent of letting these corporations off the hook for knowingly breaking the law can't be undone.
That's why, in addition to the fact that pitting the Constitution against AT&T did seem the most potent way to fight this politically, we have focused so largely on telco amnesty. That, and for strategic reasons, is why we should continue to press Obama, Reid, Dodd, Feingold and others who have said in response to this bill, or in response to Dodd's stand last winter, that they oppose amnesty, period.
Strategically, if immunity is removed, the bill is once again veto bait. Another stalling tactic, maybe, but one that might work to finally kill this damned thing once and for all this session. Delaying it past the Independence Day recess is the goal for now. Pushing it into the short remaining work period for the session in August would land in the middle of a packed schedule of "must pass" bills. There's the slimmest chance that time would once again work in our favor. Granted, that outcome is not likely. Our Congress, including our nominee, seems intent, as Hunter says, "to quite so cravenly negate their own oversight duties."
It's our job to try to stop them, and to convince our leaders that it's the right thing to do and they'll have our support in doing so. Here's how, again courtesy Glenn:
As the extremely pro-Obama MoveOn.org notes today, Obama's spokesman, Bill Burton, back in in September, vowed that Obama would "support a filibuster of any bill that includes retroactive immunity for telecommunications companies." MoveOn believes Obama should be held to his word and is thus conducting a campaign urging Obama to do what he promised -- support a filibuster to stop the enactment of telecom amnesty. You can email Burton here to demand that Obama comply with his commitment not just to vote against, but to filibuster, telecom amnesty:
Incidentally, Chris Dodd made an identical promise when he was running for President, prompting the support of hundreds of thousands of new contributors, and he ought to be held to his promise as well.
In addition to Obama, contact Harry Reid (Phone: (202) 224-3542, Fax: (202) 224-7327), Russ Feingold (Phone: (202) 224-5323, Fax: (202) 224-2725) and Chris Dodd (Phone: (202) 224-2823, Fax: (202) 224-1083). Ask them to do what they can to derail this train.
Chances are this train is too far from the station to put a stop to. But our job as the left flank of this party, the activist wing, is not to throw up our hands in despair and accept this as a done deal with our bitter acquiescence.
Our job also isn't go off sulking in a fit of pique because our leaders let us down. Blustering, whining, refusing to play anymore is the least helpful and productive of avenues. I keep coming back to Howard Dean and his admonition to us at Yearly Kos in Chicago that we are working on a long term project here to take our party back. Making this party ours again is going to take a lot of work and a long time. We do that by staying engaged. We do that by telling our representatives, including our presidential candidate (who is STILL head and shoulders better than the alternative) what we expect of them and by making their decisions matter.
As long as there is a fight to be had, we're the ones to fight it and to help our allies in Congress fight it. It's our job. If we don't do it, if we don't stand up for progressive values, who will?