The campaign's claim that Obama supported the FISA compromise to avoid "expiration of FISA" is factually false and, even when corrected, makes no sense.
(updated below – Update II)
In today’s New York Times, James Risen — who won the Pulitzer Prize for exposing Bush’s illegal NSA spying program — has an article reporting on Obama supporters who are criticizing Obama for his FISA reversal and who are attempting to defeat the bill which Obama supports. The article quotes Jane Hamsher, Markos Moulitsas and myself and features the very innovative effort by Obama supporters to use his campaign’s social networking tools to urge Obama to oppose the FISA bill (more on that campaign here). For his article, Risen spoke with Obama adviser Greg Craig, a partner at the Washington law firm Williams & Connolly, and this is what Craig told Risen:
Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.
“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.”
Craig’s statement is flat-out false. FISA — enacted in 1978 and amended many times to accommodate modern communications technology — has no expiration date. The Protect America Act, which Congress enacted last August to legalize warrantless eavesdropping on Americans, had a 6-month sunset provision and thus already expired back in February, restoring FISA as the governing law. Thus, if Congress does nothing now, FISA will continue indefinitely to govern the Government’s power to spy on the communications of Americans. It doesn’t expire. What Craig said in defense of Obama is just wrong.
I emailed Craig this morning about his comments (here) and when I received no reply, I called him, left a message, and he called me this afternoon. 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.
While that last version at least generally comports with reality, it makes no sense whatsoever as an explanation for Obama’s FISA position. Back in August, when he was seeking the Democratic nomination, Obama voted against the Protect America Act. Therefore, had Obama had his way, there never would have been any PAA in the first place, and therefore, there never would have been any PAA orders possible. Having voted against the PAA last August, how can Obama now claim that he considers it important that the PAA orders not expire? How can he be eager to avoid the expiration of surveillance orders which he opposed authorizing in the first place?
I asked Craig that question several times and received completely incoherent replies, after which he started insisting that he already answered me and had nothing else to add (he then changed the subject to talk about the “improvements” the current bill achieves over the Rockefeller Senate bill). The fact is that there is no answer. In the past, Obama has opposed the type of warrantless eavesdropping which those PAA orders authorize. He’s repeatedly said that the FISA court works and there’s no need to authorize eavesdropping without individual warrants. None of that can be reconciled with his current claim that he supports this FISA “compromise” because National Security requires that those PAA orders not expire and that there be massive changes to FISA. It’s just as simple as that.
It’s bad enough that Obama is supporting a new warrantless eavesdropping scheme. They should just candidly admit that he changed his position rather than feeding incoherent and insultingly false rationalizations to the public — whereby they throw around the terms “National Security” and “balance” enough times and hope that nobody notices or cares that what they’re saying makes no sense. One of the strengths of the Obama campaign has been a willingness to have adult discussions about complex political issues, assume a fair amount of rationality and intelligence on the part of the voting public, and avoid manipulative, obfuscating sloganeering like this. It’s just adding insult to injury to resort to nonsensical justifications of the type Craig put into the New York Times today.
Just to get a flavor for how fundamental a reversal is Obama’s FISA position, here is what Obama said back in February when accepting Chris Dodd’s endorsement:
We know it’s time to time to restore our Constitution and the rule of law. This is an issue that was at the heart of Senator Dodd’s candidacy, and I share his passion for restoring the balance between the security we demand and the civil liberties that we cherish.
The American people must be able to trust that their president values principle over politics, and justice over unchecked power. I’ve been proud to stand with Senator Dodd in his fight against retroactive immunity for the telecommunications industry. Secrecy and special interests must not trump accountability. We must show our citizens — and set an example to the world — that laws cannot be ignored when it is inconvenient. Because in America –- no one is above the law.
Here is what he said back in January:
Ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand.
The FISA court works. The separation of power works. We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight, and do not undermine the very laws and freedom that we are fighting to defend.
No one should get a free pass to violate the basic civil liberties of the American people — not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed. . . .
A grassroots movement of Americans has pushed this issue to the forefront. You have come together across this country. You have called upon our leaders to adhere to the Constitution. You have sent a message to the halls of power that the American people will not permit the abuse of power — and demanded that we reclaim our core values by restoring the rule of law.
It’s time for Washington to hear your voices, and to act. I share your commitment to this cause, and will stand with you in the fights to come.
And obviously, his vow last October to “support a filibuster of any bill that includes retroactive immunity for telecommunications companies” can’t be reconciled with his vow to “support” such a bill now.
The issue is not — as one extremely confused Obama-cheering blogger put it — that Obama has done “something contrary to what conventional wisdom as dictated by a small coterie of prominent bloggers agrees with,” nor is it — as an equally confused, Obama-cheering Ed Kilgore put it — that Obama is “stray[ing] from Democratic Party orthodoxy or from strict down-the-line partisanship” by “expressing heretical thoughts on FISA” (incidentally, it’s amazing how the rule of law, the Fourth Amendment and accountability for Bush lawbreaking have now — in service of defending Obama — all been instantaneously reduced to nothing more than quirky, self-absorbed, petty blogger “dictates,” and Obama’s disregarding of those core political values is a bold demonstration that he won’t be held hostage to anyone’s narrow partisan demands).
The issue is that Obama has repeatedly, over the course of the last year, made emphatic commitments and clear statements about his own core political values that are completely irreconcilable with his support for the FISA bill. It’s possible to recognize that someone is just a “politician” and still trust that they’re essentially telling you the truth about what they think and what they’ll do. One hard-core Obama supporter explains that here.
As I said, it’s bad enough that this is being done. Eventually, the sting of what Obama and Democrats generally have done will diminish somewhat for many people. But for those who have sat by watching the Bush administration and its followers exploit complexities over spying issues in order to issue one false claim after the next to justify Bush’s lawbreaking, having the Obama campaign issue factually false and/or incoherent explanations to justify Obama’s conduct only makes matters worse, not better.
* * * * *
Blue America has created — and today unveils — a superb new tool for contacting key Senators to urge them to vote against the FISA bill and/or to vote for pending amendments to improve the bill (if any of those amendments pass, a key benefit will be that the bill then must return to the House or be reconciled, rather than going straight to the White House for signing):
This first tool allows you to directly contact Senators to tell them to stand up for the rule of law and vote in favor of the Dodd-Feingold-Leahy amendment. (That’s S.A.5064 to H.R. 6304 which will come up for a vote on July 8th, 2008.) Not only will this tool help you phone your Senators — including connecting your call — but it also gives us the ability to track positions on FISA given your input on what you ascertain during your conversations.
You can read about how to use it here.
Finally, Darcy Burner — the Democratic challenger to GOP Rep. Dave Reichert in Washington State — experienced a tragic event yesterday where her home was completely destroyed by a fire, causing the loss of most of her family’s possessions and their family cat. Darcy is one of the most impressive Democratic candidates anywhere in the country — and has been as outspoken on warrantless eavesdropping and the NSA scandal as anyone, despite being in a very close race in a split GOP/Democratic district. Those wanting to help her and the campaign in this difficult time can find out how to do so here and here.
UPDATE: Andrew Sullivan praises this satirical post by Andy Borowitz at Huffington Post which begins this way: “The liberal blogosphere was aflame today with new accusations that Sen. Barack Obama (D-Ill) is trying to win the 2008 presidential election.” The same joke is repeated over and over in each paragraph.
If anyone has any evidence at all that: (a) Obama would be less likely to win if he continued to oppose telecom amnesty and warrantless eavesdropping; (b) his chances to win increase by being perceived as someone who flagrantly changes positions for political gain; and/or (c) he is more likely to win by embracing Bush/Cheney policies, please alert me to such evidence. I would really like to see it, because I don’t believe any such evidence exists.
How did those tactics work out for John Kerry in 2004? How did it work out for the Democrats in 2002 when they were sure that, by agreeing to Bush’s demand for authorization to attack Iraq, they would be able to avoid being called “weak on national security” and then win the election on domestic issues? Ask Max Cleland — who voted for the AUMF and then had ads run against him with Osama bin Laden and Saddam Hussein — how well that approach works. If, tomorrow, Obama comes out and says that he’s open to the use of waterboarding, is Andrew going to cheer for that as a shrewd, pragmatic move to take the issue “off the table” and move to the Center so he can win?
Repudiating their own base and moving to the so-called Center isn’t some sleek, exotic strategy that the Obama campaign invented this year. It’s what Democrats are always told to do and what they always do (other than in 2006, when the perception was that — finally — there was a real difference between them and the GOP because of the Iraq War). How has that advice worked out historically for Democrats?
UPDATE II: Daniel Larison — recently hailed by David Brooks as one of “a group of young and unpredictable rightward-leaning writers” who believe “that something is fundamentally wrong with the right, and it needs to be fixed” — makes some important points about this matter today, and does it exceptionally well, in a post entitled “Is There Anything Worth Defending?” It can be read here.
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