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Wednesday, November 12, 2008


So Obama decided to support the FISA "compromise" which is very very unfortunate. I understand that running for President is a messy business, and I've had no problem with him cozying up to all sorts of people that I don't personally care for in order to gain support, but this strikes me as a political sin of another order of magnitude.

If you want to quickly get up to speed on this issue check out Jonathan Turley speaking with Keith Olbermann about the bill (vid)

For specific details here are two good summaries of the bill's particulars:

Congressman Rush Holt

And you can read Obama's statement of support here

Basically the bill does two things: First it makes many aspects of Bush's warrantless wiretapping program "legal." I put the word legal in quotes because Congress actually can't pass laws that defy the Constitution (in this case the 4th amendment's assurance against unreasonable search and seizure) without amending the Constitution, so it's not really legal.

That's where the second part comes in: It retroactively immunizes all the telco companies that cooperated with the program, thereby killing off some 40 lawsuits currently headed to trial. The courts can't strike down a law if there is no trial.

The immunity aspect is also a big deal because it would be in the course of those trials, through the "discovery process," that we would finally find out what exactly the Bush Adm. was actually up to. Interestingly, the telco's themselves have not even really been pressing for the immunity aspect, leading many to speculate that their lawyers, who would have recognized that this violated the law, would not have allowed their clients to participate without some kind of contract with the gov't saying that if in the future a court found them guilty and ordered them to pay fines for damages that the gov't would have to pay it all. In other words, they're likely covered.

It's the Bush Admin that's been up in arms about this. They've simultaneously argued that they require expanded authority to prevent the next terrorist attack and that they would veto any bill that granted them such powers without also providing for retroactive immunity for the telco's past deeds. (In other words saying they are willing to put the country in danger of another attack in order to ensure immunity goes through) They do not want the discovery process to occur and for everyone to find out what they've been doing. Even Congress members, who just voted on this bill, don't know what the Bush admin's been up to.

Hunter at DKos on why this matters:

The Bush administration has broken law after law, and been enmeshed in scandal after scandal, and been met with no substantive actions. There are investigations that never end; there are stern letters that are never answered; there are subpoenas that are simply ignored. So to respond to a clearly illegal act by, of all possible things, writing legislation that offers retroactive immunity for those acts, maintains the secrecy of those acts, and declares that the Bush administration itself will be responsible for the future integrity of those acts -- it is patently asinine. It is an insult.

Among the more basic premises of the Bill of Rights is the notion of probable cause; your government may not conduct searches or seizures without a warrant, and the judicial branch shall judge the merit of those warrants. But the Bush administration wishes simply nullify that entire concept, if those searches are electronic in nature. It takes no imagination at all to observe that once one type of widespread, warrantless, causeless electronic search is deemed to be outside of 4th Amendment protections, an entire series of other electronic searches will follow.

Sen. Russ Feingold explains why he opposes the bill:

"The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President's illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, 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. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration."

And Sen. Arlen Specter:

Sen. Arlen Specter of Pennsylvania, the top Republican on the Senate Judiciary Committee, condemned the immunity deal. He said that nothing in the new bill would prevent the government from once again wiretapping domestic phone and computer lines without court permission.

Specter said the problem is constitutional: The White House may still assert that the president's Article II powers as commander in chief supersede statutes that would limit him actions.

"Only the courts can decide that issue and this proposal dodges it," Specter said.

So then what's up with Obama!? What is he thinking?

Well, there's two trains of thought on this. The most likely explanation is that he just doesn't think this makes for good politics and he doesn't want to open himself up to being "weak on terror." Some have argued that the bill is going to pass with or without him, so there would be no point in taking a political hit. Glenn Greenwald puts it less charitably:

Telling Americans that we have to give up basic constitutional rights -- and allow rampant lawbreaking -- if we want to save ourselves from "the grave threats we face" sounds awfully familiar. He says he will work to remove amnesty from the bill, but once that fails, will vote for the "compromise." Obama has obviously calculated that sacrificing the rule of law and the Fourth Amendment is a worthwhile price to pay to bolster his standing a tiny bit in a couple of swing states.

Greg Sargent remarks on why this is so frustrating:

One of the riveting things about Barack Obama's candidacy is that since the outset of the campaign he's seemed absolutely dead serious about changing the way foreign policy is discussed and argued about in this country.

Time and again, in his debates with Hillary, and now with John McCain, his whole debate posture on national security issues was centered on the idea that he could challenge and change what it means to talk "tough." His candidacy has long seemed to embody a conviction that Democrats can win arguments with Republicans about national security -- that if Dems stick to a set of core principles, and forcefully argue for them without blinking, they can and will persuade people that, simply put, they are right and Republicans are wrong.

if there were ever anything that would have tested his operating premise throughout this campaign -- that you can win arguments with Republicans about national security -- it was this legislation. If ever there were anything that deserved to test this premise, it was this legislation.

And this time, he abandoned that premise.

Glenn Greenwald (who is pissed!) adds:

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.

The excuse that Obama's support for this bill is politically shrewd is -- even if accurate -- neither a defense of what he did nor a reason to refrain from loudly criticizing him for it.

What Barack Obama did here was wrong and destructive. He's supporting a bill that is a full-scale assault on our Constitution and an endorsement of the premise that our laws can be broken by the political and corporate elite whenever the scary specter of The Terrorists can be invoked to justify it. What's more, as a Constitutional Law Professor, he knows full well what a radical perversion of our Constitution this bill is, and yet he's supporting it anyway. Anyone who sugarcoats or justifies that is doing a real disservice to their claimed political values and to the truth.

Now there's also another theory about why he's taking this position, which is a bit more cynical:

Barack Obama plans to be the next President of the United States. Once he becomes President, he will be in the same position as George W. Bush: he wants all the power he needs to protect the country. Moreover, he will be the beneficiary of a Democratic-controlled Congress, and he wants to get some important legislation passed in his first two years in office.

Given these facts, why in the world would Obama oppose the current FISA compromise bill? If it's done on Bush's watch, he doesn't have to worry about wasting political capital on it in the next year. Perhaps it gives a bit too much power to the executive. But he plans to be the executive, and he can institute internal checks within the Executive Branch that can keep it from violating civil liberties as he understands them. And not to put too fine a point on it, once he becomes president, he will likely see civil liberties issues from a different perspective anyway.

So, in short, from Obama's perspective, what's not to like?

Matt Yglesias adds:

For the rest of us, this is a concern. But it's still baffling to me how little concern congressional Republicans seem to have about this. It's not that I expect logical consistency to restrain them -- they complained about Bill Clinton's expansions of executive power in the 1990s then turned on a dime when Bush entered office and they'll turn again in 2009. But while they'll be able to whine about the inevitable abuses Bush-era policymaking has opened the door to, they won't actually be able to do anything about it. Meanwhile, I guess I hope President Obama uses his powers responsibly, but on some level I'm sort of rooting for massive abuses so the right can get what they've been asking for.

Perhaps Obama should do what this DKos diarist suggests:

President Obama can just appoint Hillary Clinton as the head of the National Security Agency, and she can exact revenge on the Vast Right Wing Conspiracy by, well, listening to everything they say.


MoveOn is asking people to do stuff

Alright, now back to our regularly scheduled programming...

Obama reversed himself and rejected public financing and the restrictions that come with it, which is a very good thing. He could raise a lot of money. I liked this article on Obama's "pragmatism:"
Obama's widely-anticipated announcement puts clear distance between the Democratic nominee and the traditional, bipartisan "reform" movement, which has included Republicans and appealed to upper-income voters of both parties. Senator John McCain has been a champion of campaign finance reform, and his Democratic counterpart on key legislation, Wisconsin Senator Russ Feingold — who supports Obama — criticized his candidate's move.

"This is not a good decision," Feingold said Thursday in a statement. "While the current public financing system for the presidential primaries is broken, the system for the general election is not."

Some reform groups criticized Obama, while others held their fire, and McCain himself described Obama's decision as "a big deal."

"He has completely reversed himself and gone back, not on his word to me, but the commitment he made to the American people."
But if Obama alienated the reformers, he won plaudits from the pragmatists.

"The only people who care about it are a few professional activists and the press," said Bob Shrum, who argued - unsuccessfully - in 2004 that his client John Kerry should have opted out of public financing. (Kerry said Thursday he would have won the race had he done so.)

"The reform issue that Obama takes seriously, the reform issue the voters take seriously, is to try to shift power away from special interests in Washington," said Shrum. "In terms of what I care about, which is winning this election, he made exactly the right decision."

Obama's move wasn't out of character. In fact - though he has at times adopted popular reform causes - Obama has never been a traditional reformer.

He came to politics through the community organizing movement, whose radical founder, Saul Alinsky, mocked highbrow reformers, and focused instead on the acquisition and use of power, with the ends often justifying the means.

In Obama's political life, that approach has translated into pragmatism. He's kept his distance from elements of the Democratic Party that demand purity, from Washington reformers to more ideologically-motivated liberal bloggers. Instead, his campaign has sought the Kennedy mantle, modeling the candidate after a revered Democratic family not known for its scruples.

"Their campaign is brutally pragmatic," said one Democratic operative. "They have the most exciting candidate since JFK and like that operation, they have their share of talented, ambitious and at times ruthless people. Barack gets to stay above the fray, while his campaign does whatever it takes to win."

Kerry's campaign, Shrum wrote in his memoir, "No Excuses," had a fierce internal debate over whether to opt out of public financing. Obama's never seems to have seriously considered sacrificing its political advantage for a principle, and seems cheerfully resigned to being chided by East Coast editorial boards.

And let's keep this in perspective:

Mr. Obama may be on slippery ground because of his previous commitment to stick with the public system. But given that his campaign essentially embodies the ideals of reform — to a degree no one seriously thought possible just a few years ago — it's going to be difficult for the McCain campaign or the chorus of scolds to generate much traction on the issue. After all, Mr. Obama's all but certain financial advantage in the campaign will be derived from donors of modest means — not wealthy vested interests.

Ever since Watergate, the ideal of campaign finance reform has been to replace a system fueled by special interests and big money with either full public financing or a system of civic-minded small donors. The former is abhorred by much of the public while the latter looks remarkably like In effect, the Obama campaign has come closer to achieving the ideals of campaign finance reform than 30-plus years of regulation. To condemn the campaign's departure from the system is to elevate rules over the principle that gave birth to the rules in the first place.

McCains protestations are pretty rich when you consider his own behavior this election:

John McCain said he would take public financing for the Republican primaries. Then he used the promise of that public financing to help secure a loan for his campaign. Then, after he wrapped up the Republican nomination, he abruptly decided he did not want to be bound by the limits on campaign fundraising and spending that accompany public financing, so he announced that he had changed his mind.

But Federal Election Commission chairman David Mason sent McCain a letter saying that he cannot unilaterally opt out of the public financing system without FEC approval -- a letter the McCain campaign ignored. If McCain cannot opt out of the system unilaterally, he has broken the law by raising and spending funds in excess of legal limits, and continues to do so each day. Even if McCain isn't breaking the law, he has already broken his word and "reversed himself" on the question of whether he would take public funding for the primaries.

That fact has gone all but ignored in news reports about Obama's decision, even those news reports that quote McCain's criticism of Obama. And McCain's own history is doubly significant: Not only does it suggest that McCain's criticism of Obama is hypocritical, it also indicates that it is impossible to trust McCain to follow through on his commitment not to raise money for the general election. Finally, if David Mason is right and McCain is found to have violated the law, as The Washington Post noted, "Knowingly violating the spending limit is a criminal offense that could put McCain at risk of stiff fines and up to five years in prison."

Josh Marshall has more on this.

The AP recaps McCain's week:

on Tuesday, he criticized his rival for proposing a windfall profits tax on the oil industry. The attack was complicated by McCain's earlier statement that he would consider the same thing.

The following day, he met with a group of Hispanics in Chicago. Aides who had kept word of the event secret were placed on the defensive within hours after one participant criticized some of McCain's comments.

On Thursday, the Arizona senator flew to Iowa, a likely battleground state in the fall, where he expressed sympathy with victims of severe flooding and pledged support for federal recovery aid. The event was overshadowed by President Bush's appearance elsewhere in the same state on the same day.

Friday's trip to Canada brought more controversy.

McCain arrived aboard his chartered campaign jet, yet told reporters at a news conference, "this is not a political campaign trip." The senator added he didn't feel it was appropriate to have the government to pay "while I am the nominee of my party."

The centerpiece of the six-hour visit was a speech to the Economic Club of Canada that amounted to a cross-border political attack. McCain criticized Obama, without mentioning him by name, for his opposition to the North American Free Trade Agreement.

"Demanding unilateral changes and threatening to abrogate an agreement that has increased trade and prosperity is nothing more than retreating behind protectionist walls," he said.

McCain's schedule also included mention of an unspecified "finance event." While that is customarily campaign jargon for a fundraiser, foreigners may not donate to U.S. candidates, and one aide was quoted in advance as saying that money from $100-per-person event would simply defray the cost of the earlier luncheon.

The non-fundraiser, which may or may not have cost $100 to attend, was held on the top floor of a building with a commanding view of the city skyline. McCain said he knew some of those in attendance had homes in Arizona in the cold weather, and at one point, referred to his campaign themes of "reform, peace and prosperity."

Even some Republicans have cringed in recent weeks at the campaign's efforts to ramp up for the fall campaign, although they will speak only privately.

McCain's a flip-flopper

Hillary popped up this weekend

Feminists for McCain? Not so much.

Michelle Obama is courting Clinton supporters

The NYT on Obama's plans for a National campaign. (Nothing really new here, sort of summarizes the many positive developments of late)

Here's a good article on the liberal agenda

Obama gave a speech on metropolitan policy Saturday. Here are a few minutes of video from it.

Frank Rich on Iraq and McCain

You can find lots of VP related commentary here (and some more here)

Here you can see how Obama and McCain's tax plans would affect two families in particular: the Obamas and the McCains

John McCain doesn't understand his own environmental plan.

McClatchy published a series of articles this week on detainee issues that resulted from an extensive investigation:

An eight-month McClatchy investigation of the detention system created after the Sept. 11 terrorist attacks has found that the U.S. imprisoned innocent men, subjected them to abuse, stripped them of their legal rights and allowed Islamic militants to turn the prison camp at Guantanamo Bay, Cuba into a school for jihad.

The NYT also has more details on the use of torture

And a final, non-political, shout out: Good work Celtics fans!

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