First: This is, more or less, a defense of Senator Obama's ultimate position on FISA, even though I disagree with it. Yes, the world is a very complicated place.
Second: A warning. I'm not doing any research here. I'm a very, very lazy man. I could link to documents, quotes, news reports, other blogs, etc, but I won't.
Third: I waited until heads cooled a little bit before I put this up for a reason.
Fourth: This is long and rambling. Key parts bolded for those as lazy as me, so they don't have to read the whole thing.
Okeydoke. Actual content "after the jump." I promise.
President George Walker Bush, with the masterful legal help of A-Gon, EOP counsel and attorney general extraordinaire, decided at some point in late 2001 that FISA, a legislation from the 1970s regulating monitoring of electronic communication between the United States and foreign countries was no longer operative. They decided to conduct wiretapping which under any reasonable interpretation of the law fell under the aegis of the FISA court and required warrants from this body without bothering to consult the court. This most likely also violated the Fourth Amendment, although that's not as inarguable as the egregious violation of congressional statute. This is what we're pissed off about. This is what we SHOULD be pissed off about. Very pissed.
Anyhoo, for the first few years of this program, the Bush administration didn't bother to tell most of Congress or the FISA court, which sort of makes sense, seeing as they were violating an act of Congress and skirting the jurisdiction of the court. Unfortunately for the Bush administration, this all eventually popped out into the public record, although, fortunately enough for them, after reelection had already been secured.
As it turned out, of course, Jane Harman, Jay Rockefeller, Harry Reid and Nancy Pelosi (as well as their Republican counterparts) had all been briefed about this illegal program. To what degree they protested against it or acceded to it is unclear, of course, as discussions were super-duper extra top-secret with a cherry on top.
At some point after the revelation of the illegal program -- after much sturm und drang -- everyone agreed that the wiretapping program was actually producing some pretty keen information and couldn't be terminated, but should be brought within the law. Now, this general agreement leaves everyone with a bit of a conundrum. The administration was certainly breaking the law, but substantial modification of the original FISA law to make wiretapping of calls between people in the U.S. and foreign countries easier would suggest that the president's violation of the law was, in fact, necessary.
Ultimately, as investigations of the Bush administration's illegal program began to fizzle out, just about everyone in Congress agreed to a fairly limited modification of the FISA law (OK, more complicated than this, acts that expired in 180 days, etc, but I'm leaving that crap out.)
The contentious issue, ultimately, was investigation of the Bush administration's violation of the law -- and Harry Reid, Nancy Pelosi, Jane Harman and J-Rock's degree of acquiescence. The actual modifications to FISA ended up being, well, not particularly contentious. Extra safeguards* were thrown in, the administration was given a bit more time to file paperwork, etc, etc. No one seemed to have much problem with that.
The Bush administration, being ever so clever, realized that Congress wasn't particularly eager to investigate Bush's flagrant lawbreaking. This seems to be a CYA move by members of the Democratic leadership who were briefed on it (in cooperation with the vast herd of Republican Bush lackeys). It would be in the courts where this battle was fought. They realized they'd never get away with a provision offering themselves immunity from investigation or prosecution of their own past violation of the law, so they did the next best thing -- offering immunity (of two kinds -- from investigation by states, and from civil lawsuits) to the telecommunications companies that cooperated with the illegal program.
YES, THIS PROVISION WAS, IS, AND WILL FOREVER REMAIN WRONG. However, the rest of the amendments to FISA were reasonable -- if not entirely necessary -- in some cases and GOOD in others.* The telco immunity provision is wrong because it is intended specifically to stymie investigation.
Naturally, corporations are always pretty keen on getting immunity for, well, anything, so the telcos were also enthusiastic about immunity. Ultimately, they save money on lawyers. However, if you were under the impression that telcos were ultimately going to lose any of these lawsuits, there's this crossing over the East River I'm proffering for sale. Civil liberties groups saw lawsuits against telcos as a convenient way to subpoena information on the illegal program.
And I've gotten this far without mentioning our presumptive Democratic nominee for the presidency of the United States, the "Land of Lincolner"**, Senator Barack H. Obama.
Obama had, from the very start, opposed giving telcos immunity but supported the other amendments to FISA. This, I feel, was (and remains, even in the wake of the passage and signing of the bill) the correct position in terms of policy. As a matter of fact, it's also the correct position in terms of politics.
Originally, Sen. Obama said he would not only vote to remove telco immunity from the bill, but he would vote for a filibuster of any FISA amendment bill that included telco immunity. This is correct in terms of policy -- and as a senator, this is also correct in terms of politics.
Unfortunately, as the Democratic nominee for president, it became a bit more uncomfortable in terms of politics. So (and this is relatively rare for Senator Obama, despite the perceptions of many) Obama shifted position. He continued his opposition to telco immunity -- but he no longer viewed telco immunity as a "poison pill."
This, as we all now know, has led to a firestorm among the netroots and places like, well, here. And frankly (and unfortunately and shortsightedly, in my view) it has cost him a fair amount of support. Now, no one in their right mind believes that had Obama opposed the ultimate bill, he would have been able to stop it. But, in opposing the bill, so the argument goes, he could have laid down a marker, one for civil liberties.
And, of course, polls showed that Americans were comfortable with FISA and most of the amendments to it, and comfortable with what amounts to a bit lower legal hurdle for wiretapping communications between the U.S. and foreign countries than wiretapping internal communications. They remain, however, uncomfortable with the president's illegal program and split -- to the degree they are aware of the issue -- on the telco immunity provision.
So, the argument went, it would not be politically risky for Obama to oppose the bill on the basis of telco immunity -- a plurality of the public was opposed to telco immunity to begin with! Now, if the Democrats had the votes to block telco immunity he, along with Congress, could have stuck to their guns and passed a good FISA amendments bill. But J-Rock and company weren't there. Not even 40 senators were.
Now, AS A SENATOR, Obama most likely would have done what his senior senator did, what Senator Clinton did, what Feingold and Dodd did -- voted against cloture on the final bill, and voted against the bill.
But there's a REASON why senators haven't been elected to the presidency in quite a while -- and it's precisely issues like this. Had Senator Obama voted against the bill because he opposed telco immunity, he would have had to explain himself. It was not the "terrorist appeaser" accusation, really, that Obama was afraid of -- he was afraid of being forced to make an explanation.
Remember Kerry's "I voted for it before I voted against it"? Well, that was a result of Sen. Kerry having taken the right position on legislation as a senator, and being forced to explain it to a national audience.
If Obama had voted AGAINST the law, time and time again, one by one, each provision of the bill would be trotted out as if a unique piece of legislation. And time and time again, Obama would have had to explain -- "I supported that provision, but I voted against the bill because of ANOTHER provision -- telco immunity."
So he voted for the extremely flawed bill after having voted against its worst provision. And so he engendered meandering diaries like this one from his supporters and furious denouncements from his once (and hopefully future) supporters.
Maybe he should have just McCained it -- issued a vague statement and never showed up to vote.
*Yep. Protections that didn't previously exist for Americans traveling overseas were added. E-mails between those in America and foreign countries were explicitly covered (they weren't, of course, in the original act.) It also includes a provision specifically saying that the president isn't allowed to violate FISA, and we really, really mean it this time, which is nice, I guess.
**Don't you hate that?