Here is a timeline regarding the PAA, the FISA Amendments Act of 2008, and statements by the Obama Campaign relating to those matters. Also, some quotes from those comments that might shed some light on the reversal of Obama's position on the need to amend FISA.
On August 5, 2007 the Foreign Intelligence Surveillance Act of 1978 (aka FISA) was temporarily overridden by the Protect America Act (PAA), which expired on February 7, 2008, restoring FISA as the law of the land. The PAA allowed the Attorney General to give one-year authorizations to certain warrantless surveillance programs that violate both FISA and the Fourth Amendment. Those authorizations begin to expire in August.
Senator Obama voted against the PAA.
FISA has been amended many times in the past thirty years, including several times since 9/11/2001. The FISA Amendments Act of 2008 (aka H.R. 6304), now pending before the U.S. Senate, is 114 pages of lobbyist-written deliberately obscure legalese, crafted to:
- to immunize against lawsuits the president telco accomplices who made billions of dollars selling the government copies of our emails and phone calls.
- to eviscerate FISA in ways that legalize the continuation of President Bush's FISA-villating surveillance programs whose PAA-authorizations are soon to expire.
H.R. 6304 was submitted to the House of Representatives at 5:35 PM June19, 2008, under rules that permitted no amendments and no more than one hour debate. It was brought to a vote with unseemly haste at 12:48 PM the next afternoon and passed 293 to 129.
Senator Obama immediately issued a statement supporting H.R. 6304 and declaring his intention to vote for it in the Senate, but maintained his opposition to telco immunity.
According to Caroline Fredrickson, director of the ACLU's Washington Legislative Office:
This bill [H.R. 6304] allows for mass and untargeted surveillance of Americans' communications. The court review is mere window-dressing -- all the court would look at is the procedures for the year-long dragnet and not at the who, what and why of the spying. Even this superficial court review has a gaping loophole -- ``exigent''
circumstances can short cut even this perfunctory oversight since any delay in the onset of spying meets the test and by definition going to the court would cause at least a minimal pause. Worse yet, if the court denies an order for any reason, the government is allowed to continue surveillance throughout the appeals process, thereby rendering the role of the judiciary meaningless. In the end, there is no one to answer to; a court review without power is no court review at all.
So, the FISA court would issue so-called ``blanket warrants,'' thereby violating the Fourth Amendment, which requires that:
... no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
For perspective, note that FISA has never prohibited surveillance of any foreign target. But, to surveil a foreign target's communication with people in the U.S. for more than three days, FISA requires the government to apply for a fourth-amendment warrant, of which FISA courts grant thousands per year.
Here is the timeline of FISA statements from the Obama campaign, and some surrounding events:
- August 3, 2007: PAA passes the Senate with Barak Obama voting against it.
- August 5, 2007: President Bush signs the PAA into law.
- October 18, 2007: Obama statement
- October 24, 2007: Obama statement
- December 17, 2007: Obama statement
- January 28, 2008: Obama statement
- February 17, 2008: the PAA expires
- June 3, 2008: democratic primaries end with Obama in an insurmountable lead
- June 4, 2008: Obama hardens his anti-Iran before AIPAC and receives Rahm Emanuel's endorsement.
- June 7, 2008: Hillary concedes
- June 18, 2008, 5:12 PM: H.R. 6304 first printed
- June 19, 2008, 5:35 PM: H.R. 6304 submitted
to the House of Representatives
- June 20, 2008, 12:48 PM: H.R. 6304 passes
- June 20, 2008, 3:00 PM: Obama statement
supporting H.R. 6304
- June 25, 2008: Obama statement
- July 3, 2008: Obama statement
- Juily 8, 2008: Senate take up amendments and final vote
- August 5, 2008: year-long surveillance programs authorized under
the PAA beging to expire.
- February 17, 2009: the last of the year-long surveillance
programs authorized under the PAA will have expired.
There are relevant excerpts from all but the last statement here. For unknown reasons, between January 28 and June 20, Obama had a nearly complete reversal of his position on FISA itself, while maintaining his opposition to telcom immunity. The Senator claims that has been no change in his position.
On 6/20/08, immediately after H.R. 6304 passed the House, the Obama campaign issued a statement claiming that:
Under [H.R. 6304] an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over.
So, by amending FISA an otherwise illegal ``important tool'' can continue, and ``the President's illegal program of warrantless surveillance will be over,'' presumably because it will have been legalized --- how else could he be so sure?
Obama advisor, Greg Craig was more explicit in a 6/2/2008 phone conversation with Salon journalist Glenn ``Glenzilla'' Greenwald:
After I read him his quote, explained that FISA won't expire, and pointed out that his comment in the NYT therefore made no sense, Craig paused for awhile and then said that he meant that the ``warrants under FISA would expire in August,'' and Obama supported the FISA ``compromise'' to prevent that from happening. When I asked Craig if he was referring to the surveillance orders authorized by the Protect America Act that allow the Government to spy with no individual warrants (which have a one-year duration and do expire in August), Craig said that this is what he meant, and that Obama wanted to avoid having those surveillance orders expire.
Obama himself made much the same admission the following day in his response letter to his current and former supporters:
The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer.
So regardless of whom we elect, we'll get a third Bush term as far as the Fourth Amendment is concerned.