There's no doubt that Barack Obama reversed his earlier position on FISA "reform" legislation when he voted for that scandalous bill. It's equally clear I think (despite Ed Kilgore) that the sellout was a political calculation, a tactical retreat, rather than a rethinking of the rule of law or the meaning of the Fourth Amendment. As kos has remarked, it was a tactical blunder. His FISA reversal was a major leap forward in the Obama campaign's rush this summer to undermine his image as a principled leader with the courage of his own convictions. It's a sickening spectacle of self-inflicted damage.
His apologists tend to argue that it was a clever or even a "necessary" tactic to vote against his own position in order to blunt Republican attacks. The reverse is true. Obama has simply fueled the flip-flopper attacks while tossing away ammunition he could have used on McCain.
Many have noted that McCain didn't even have the courage to show up for the FISA vote. Very few seem to recognize that McCain has taken so many positions on FISA and warrantless surveillance that he couldn't cast a vote without calling attention to his flip flops. So how the hell was he going to be able benefit from making the FISA bill an issue?
Let's take a brief tour of McCain's positions, shall we? In 2004, before the illegal NSA programs were made public, McCain responded "NO" to this question from Project Vote Smart:
Should the United States grant law enforcement agencies greater discretion to read mail and email, tap phones, and conduct random searches to prevent future terrorist attacks?
Seems pretty clear; he thought in 2004 that the Fourth Amendment means what it says, even when the specter of terrorist attacks is invoked. After the warrantless surveillance became public, McCain was critical of it on legal grounds - until he became the Republican frontrunner, that is. For example, McCain told Matt Lauer that "it is up to a court of law to find out if someone broke the law here and where punishment should be handed out." CNET's Declan McCullagh documents McCain's positions from 2005 to 2007, including this statement he issued to CNET last November:
Every effort in this struggle and other efforts must be done according to American principles and the rule of law. When companies provide private records of Americans to the government without proper legal subpoena, warrants, or other legal orders, their heart may be in the right place, but their actions undermine our respect for the law.
I am also a strong supporter of protecting the privacy of Americans. The issues raised by S.2248, and the events and actions by all parties that preceded it, reach to the core of our principles. They merit careful and deliberate consideration, fact-finding, and exploration of options. That process should be allowed to proceed before drawing conclusions that may prove to be premature.
If retroactive immunity passes, it should be done with explicit statements that this is not a blessing, there should be oversight hearings to understand what happened, and Congress should include provisions that ensure that Americans' private records will not be dealt with like that again.
In December 2007 McCain responded in a similar vein to questions from Charlie Savage, saying that the president has no inherent powers to conduct national security surveillance without warrants. McCain all but stated that George Bush had broken the law in doing so.
But this year, McCain and his campaign were all over the map. In February he voted for retroactive immunity for telecoms that helped Bush break the law. On May 21 one of his campaign surrogates said McCain opposes immunity until Senate hearings are held.
"There would need to be hearings to find out what actually happened and what harms actually occurred," [McCain campaign lawyer Chuck] Fish said, adding that immunity would need to be coupled with clear rules to make sure private records would be protected in future.
Two days later the flip flops began to turn into a blur. The McCain campaign reversed itself again and declared that McCain favors unconditional retroactive immunity. Then at NRO on May 29 McCain advisor Doug Holtz-Eakin tried to vilify the WaPo report on Fish's statements.
On the very same day however McCain told a town hall questioner in Wisconsin that "what we really need to do, to address this issue, is have hearings, have discussions."
On June 2 Holt-Eakin again tried to reassure right-wingers at NRO that McCain did not question the president's right to violate the law in the name of national security.
We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution.
The McCain flip flops and nuances became so confusing that Charlie Savage tried to sort them out for NYT readers. On the same day, McCain spokesman Tucker Bounds tried to explain away the flip flops, arguing that Bush did actually follow the law because courts "have recognized the president's constitutional authority to conduct warrantless surveillance for foreign intelligence purposes."
Confused? In early June the Obama campaign thought you should be.
Greg Craig, an Obama campaign adviser, said [on June 4] that anyone reading Mr. McCain’s answers to The Globe and the more recent statement would be "totally confused" about "what Senator McCain thinks about what the Constitution means and what President Bush did."
"American voters deserve to know which side of this flip-flop he’s on today, and what he would do as president," Mr. Craig said in a phone interview.
Obama knew perfectly well that McCain was vulnerable on the issue of warrantless surveillance and FISA reform. Then Obama turned around and threw the advantage away while damaging his own reputation. There's nothing clever or necessary about such self-defeating tactics. This is one of those fiascos where the candidate needs to pay attention to what his critical supporters are telling him.