Warrantless wiretapping of Americans should outrage Congress into banning the practice. But, in a display of political expediency, the Senate is about to bless it, following a similar cave-in by the House last month.
Making matters worse, both likely presidential candidates — Sens. Barack Obama and John McCain – plan to reverse their opposition and vote for the White House-backed rewrite of the Foreign Intelligence Surveillance Act. The bigger of the two reversals is Obama, who earlier this year had promised a filibuster to defeat the bill.
These are just facts — facts about Barack Obama, the FISA bill he supports and which the Democratic Congress will approve today. Recall that James Comey testified last year that what he and other DOJ officials learned in 2004 about Bush’s spying activities for the several years prior was so extreme, so unconscionable, so patently illegal that they all — including even John Ashcroft — threatened to resign en masse unless it stopped immediately. We still have no idea what those spying activities were. We know, though, that even the right-wing DOJ ideologues who approved of the illegal “Terrorist Surveillance Programs” that we know about found those activities indisputably illegal and wrong. But Barack Obama and the Democratic-led Congress will today enact a bill to immunize all of that, to protect the lawbreakers who were responsible.
As I’ve said many times before, there are clear differences between an Obama and McCain presidency. Denying that is just as irrational as those for whom the only political rule is Thou Shalt Not Speak Ill of Obama.
But it’s equally clear that politicians like Obama are unable within the prevailing political establishment to do much to stop the continued growth of the lawless surveillance state and our two-tiered system of justice, even if they wanted to stop it, even if they were willing to expend political capital to take a stand against it. And Obama — with his support for this wretched assault on the Constitution and the rule of law — is demonstrating that, contrary to his many prior statements, these issues are anything but a priority for him (Larry Lessig: Obama aides say “the FISA compromise in the bill was a good one”). Differences between Republican and Democrats exist and are important in many cases, but those differences are often dwarfed by the differences between those entrenched in and dependent upon the Washington Establishment and those — the vast, vast majority of American citizens — who are not.
UPDATE: The Savannah Morning News has an article on the ads running against Democratic Rep. John Barrow.
The vote on the Dodd-Feingold-Leahy amendment to remove telecom immunity from the bill is taking place now. I will post the vote total and details as soon as it is done.
UPDATE II: The Dodd-Feingold amendment to remove telecom immunity from the bill just failed by a vote of 32-66.
I was mistaken about Obama’s not showing up to vote (that was the case, as I understood it, when the vote was scheduled for yesterday). He is in the Senate and, as he said he would, just voted (along with Hillary Clinton) in favor of the amendment to remove telecom immunity from the bill.
From listening, these are the Democrats who have voted in favor of removing immunity from the bill: Akaka – Baucus – Biden – Bingaman – Boxer – Brown – Byrd – Cantwell – Cardin – Casey – Clinton – Dorgan – Durbin – Feingold – Harkin – Kerry – Klobuchar – Lautenberg – Leahy – Levin – Mendenez – Murray – Obama – Reed – Reid – Sanders (I) – Schuemer – Stabenow – Tester – Whitehouse – Wyden.
Every Republican (and Lieberman) voted against removing immunity (including Arlen Specter, who spent all day arguing against immunity). Democrats voting against removing immunity: Bayh – Carper – Conrad – Feinstein – Innouye – Johnson – Kohl – Landrieu – Lincoln – McCaskill – Mikulski – Nelson (FL) – Nelson (Neb.) – Pryor – Rockefeller – Salazar – Webb.
Specter’s amendment is next (to ban immunity if the spying was unconstitutional). Then they will vote on the Bingaman amendment (which I wrote about yesterday). They will both fail, and then they will vote on the final bill in its unchanged form.
UPDATE III: Specter’s amendment — merely to require the court to determine the constitutionality of the NSA spying program and condition immunity on a finding of constitutionality — just failed 37-61. Obama (and Clinton) voted in favor of the amendment, and Specter was the only Republican to do so.
All Republicans (and Lieberman) voted against, and these were the Democrats voting against: Bayh – Carper – Johnson – Landrieu – Lincoln – Mikulski – Nelson (FL) – Nelson (Neb.) – Pryor – Rockefeller – Salazar. [NOTE: I'm recording these roll calls from watching the proceedings, and so it's likely there are some errors and omissions. I will correct them as they are brought to my attention and will link to the official roll call vote once it is available]. The Bingaman amendment is next.
UPDATE IV: The Bingaman amendment — merely to require that the Senate waits until the IG audit of the NSA program is complete before immunizing the telecoms (and here’s an excellent piece documenting how inadequate IG investigations are for real oversight) — just failed by a vote of 42-56 (60 votes were required for passage, courtesy of an agreement not to force the GOP to do a mount filibuster).
Obama (and Clinton) voted in favor of the Bingaman amendment. McCain wasn’t present to vote on any of this (though almost certainly would have voted with the GOP on all amendments). Specter was the only Republican to vote in favor of the Bingaman amendment. The Democrats voting against: Bayh – Landrieu – Nelson (Neb.) – Pryor – Rockefeller. They are now in recess until the afternoon, after which they will vote to pass the underlying bill.
UPDATE V: I was on the Brian Lehrer Show this morning debating the FISA bill with former Clinton National Security Advisor Nancy Soderberg (who favors the bill). Because of some technical difficulties, I wasn’t on the show until roughly 7:30 in. That debate can be heard here.
UPDATE VI: Cloture on the bill just passed 72-26. Obama voted in favor of cloture along with all Republicans. Hillary Clinton voted against cloture.
After the cloture vote, the Senate just approved final passage of the FISA bill, by a vote of 69-28. Obama voted with all Republicans for the bill. Hillary Clinton voted against it.
Democrats voting in favor of final passage of the FISA bill: Bayh – Carper – Casey – Conrad – Feinstein – Innuoye – Kohl – Landrieu – Lincoln – McCaskill – Mukulski – Nelson (Neb.) – Nelson (Fla.) – Obama – Pryor – Rockefeller – Salazar – Webb – Whitehouse.
Democrats voting against final passage of the FISA bill: Akaka – Biden – Bingaman – Boxer – Brown – Byrd – Cantwell – Cardin – Clinton – Dodd – Dorgan – Durbin – Feingold – Harkin – Kerry – Klobachur – Lautenberg – Leahy – Levin – Menendez – Murray – Reed – Reid – Sanders – Schumer – Stabenow – Tester – Wyden.
UPDATE VII: I have a new piece on the Senate’s final passage — here.