Keith Olbermann's reply and Obama's secret plan to protect the rule of law

The MSNBC star denies he was justifying Obama's support for the FISA bill; in the course of denying it, he proceeds to do exactly that.

Published June 27, 2008 12:02PM (EDT)

(updated below - Update II - Update III)

Keith Olbermann went to Daily Kos to respond to what I wrote yesterday regarding his and Jonathan Alter's statements on Obama's support for the FISA bill. Despite his having packed his response with substance-free invective, I'm going to keep the reply as dispassionate as possible because I'm not interested in engaging in some personality-driven spat of the type that he seems to enjoy. What's more, in the scheme of things, I don't consider Keith Olbermann to be The Enemy or, comparatively speaking, even a particularly bad influence to be targeted. I wrote about his comments yesterday because they reflect a broader trend that I do think matters.

In his Kos reply, Olbermann pronounces that my piece yesterday was "simplistic and childish" but then adds the standard dismissive Journalist defense: "I don't know much about Mr. Greenwald and I didn't read his full piece." He says that he refrained from criticizing Obama's support for the FISA bill in reliance on John Dean's comments, and "John Dean is the smartest person I've ever met" and "John Dean is worth 25 Glenn Greenwalds (maybe 26 Keith Olbermanns)" -- so that settles that (for what it's worth, I also have a high opinion of Dean's legal acumen; hosted his appearance at FDL's Book Salon; don't disagree with him about this bill at all; have communicated with him about many issues; and he has said many complimentary things about my work in the past, so waving the flag of Dean's Unassailable Authority establishes nothing).

Olbermman then denies that he was justifying Obama's support for the FISA bill but then goes on to do exactly that:

Seriously, there is little in the polls to suggest McCain has anything to run with other than terror . . . . So why hand them a brick to hit him with -- Obama Voted Against FISA -- if voting Aye enhances his chances of getting himself his own Attorney General to prosecute FISA.

How can Olbermann accuse me of distorting his commentary and deny that he's rationalizing Obama's support for the bill and then write the above -- which does nothing but justify Obama's support for the bill? That's exactly the mentality I was criticizing yesterday -- that Obama should be excused for supporting this assault on core Constitutional liberties and the rule of law because doing so is necessary to avoid appearing Weak on Terrorism. That's the behavior which Obama has repeatedly vowed to reject, and it's that precise mentality that has to be extinguished, not perpetuated.

In his Daily Kos response, Olbermann -- just as he has done on his show repeatedly ever since Obama announced his support for the bill -- also suggested that Obama is harboring a Secret Benevolent Plan that he isn't telling anyone about whereby he is supporting the FISA bill so that he can prosecute the telecoms criminally once he's in office:

But anybody who got as hot about this as I did would prefer to see a President Obama prosecuting the telecoms criminally, instead of seeing a Senator Obama engender more "soft on terror" crap by casting a token vote in favor of civil litigation that isn't going to pass since so many other Democrats caved anyway. . . . If it isn't the Senator's game plan, he'll catch hell from me about it later.

This idea that John Dean and I have different opinions about this matter, that Dean is justifying what Obama did, and that therefore Olbermann -- by relying on the Supreme Authority of John Dean -- is being consistent in his remarks on FISA is bizarre, and it illustrates exactly why I wrote what I wrote yesterday. Olbermann is referring to comments Dean made on his show about the FISA bill last Friday. Here is the very first thing Dean said about the House bill that Obama now supports:

DEAN: Well, I think, you've got to give one for the terrorists on our Fourth Amendment. They really did some damage today in this so-called compromise, contrary to what the speaker said that really does hurt the Constitution. So, it's very troubling and it's not a good day for civil liberties, particularly.

Dean went on to speculate that because the bill is poorly drafted, an argument might be constructed that it extinguishes only civil liability for the telecoms but fails to immunize them from criminal liability.

I don't disagree with that. In fact, it doesn't seem to be through sloppiness or neglect -- but rather through deliberate intent -- that the bill only immunizes telecoms from civil, not criminal, liability (the key telecom section, 802(a), provides that "a civil action may not lie or be maintained against any person providing assistance to the intelligence community" where the bill's conditions are met). There are likely many reasons for confining immunity to civil liability -- including the heightened difficulty of proving criminal intent and, most importantly, the fact that Bush, on his way out, can pardon telecoms from criminal but not civil liability. So it's far from certain that Obama -- even if he did have a Secret Plan criminally to prosecute telecoms once in office -- would even be able to do so. If Bush pardons everyone connected to his illegal spying program, as many have speculated he might, then Obama's Secret Plan -- even if it existed -- would be instantaneously extinguished. That's why these telecom lawsuits are the only real avenue left to ensure accountability and obtain a legal ruling on what was done.

But beyond all that, to give Obama a pass on his support for such a heinous bill -- one which Dean himself describes as a grave assault on the Constitution -- based on this imagined secret plan for the Good that Obama is harboring is to illustrate exactly the sort of blind faith in political leaders that is so dangerous. That's been the Right's mentality to excuse every last thing Bush does:

It may look to you like Bush is breaking the law or doing something wrong, but he's a Good person and so we can trust in him that he's doing it for our own Good, even when he doesn't tell us why he's doing it and even when he keeps his real motives a secret. He probably has a good reason for doing these things and we don't need to know what that is. Besides, we're facing such an extreme crisis that it's more important to support him than criticize him even when we don't understand why he's doing something and even when we don't know what it is that he's doing.

No political leader deserves that sort of blind faith -- not Bush and not Obama. That's how a small child thinks about his Daddy, not how a citizen should think about a political leader. As the commenter sysprog wrote the other day:

Four-year-olds see their preferred politicians as god-like fathers (or mothers) whose virtuous character will guarantee good judgment. If a judgment looks questionable to you, then it's because you don't know all the facts that mommy and daddy know, or it's because you aren't as wise as them.

Down that mental road lies uncritical devotion to a Leader for even the most unjustifiable political acts. Depicting a bill with telecom amnesty when Bush supports it as "textbook Fascism," only to then depict Obama's support for such a bill as "refusing to cower to the Left," is simply inexcusable.

Notably, even beyond Olbermann's excuse, there have been all sorts of other theories about how Obama is harboring other Secret Plans that justify his support for this FISA bill. One widely cited Kos diary yesterday claimed that since the real danger to the Fourth Amendment is the Patriot Act's elimination of "the wall" between foreign intelligence and law enforcement, rather than FISA, Obama has decided to allow the FISA bill to pass so that he can gain power in order to implement a different Secret Plan to abolish the oppressive parts of the Patriot Act (however bad the Patriot Act is, allowing warrantless spying under FISA makes it worse). Another top Kos diary -- entitled "Obama's Outsmarted Us Again" -- echoed Jonathan Alter's rationalizations by claiming that Obama's support for this bill was part of a brilliant plan he has to impose Constitutional limits on Bush in his last six months in office. Apparently, Obama's unfailing Goodness is so absolute that even when it appears he's doing something wrong, that's just a failure on our part to discern his secret plan to protect us all.

As he mentions in his Kos diary, Olbermann had the vocally pro-Obama Markos Moulitsas on his show on Monday night and tried to get Markos to embrace this excuse for Obama. Markos rejected it emphatically:

OLBERMANN: But to the point of the Constitution, John Dean made a fascinating point on this news hour on Friday. He read this bill and he knows a little something about the Constitution, too. He says it's so sloppily written that nothing in there would rule out later criminal liabilities for the telecom companies.

Could that be, actually, what Obama is counting on, just sort of cede this civil action stuff which is basically in lieu of sending these people to jail and just concentrate on, you know, closing up whatever perceived weakness there is of the Democrats being soft on counterterror and, in fact, just hold a bigger punch back until after the election?

MOULITSAS: Well, if that's the strategy, he has said nothing to indicate that and this is not the sort of thing that I think you have to keep quiet and secretive. I mean, if that's his strategy, he can say, "This is a bill that's flawed," but, really at the end of the day he has a chance to stand for the Constitution and to show that he will protect it against forces that seek to undermine it and he will show that he has, like I said before, that he is a leader and will take the mantle of leadership on this issue and take control of the Democratic Party.

Markos -- who observed: "I don't think he's going to lose any support, I mean, let's be honest. I mean, it's either Obama or John McCain" -- nonetheless added:

I think what's at stake, though, is a lot of the intensity of support for Barack Obama. And he spent the last two years telling us how he's going to be the leader of the free world, not to mention the Democratic Party and this nation . . . . I don't want to hear him talk about leadership. I don't want to hear him talk about defending the Constitution; I want to see him do it.

That is precisely the point, and of course those who believe in defending core constitutional liberties shouldn't remain quiet when any politician -- including Obama -- takes actions to erode them.

What is most disturbing here is that people (including Olbermann) who for so long have vehemently criticized Democratic leaders for capitulating to Bush and trampling on the Constitution out of fear of looking "Weak" are now invoking that very excuse to justify what Obama is doing here (that's what Olbermann explicitly did in his Kos reply). To excuse Obama's conduct on that basis is to perpetuate Democratic complicity. Obama had -- and will continue to have -- a critical opportunity to reject and debunk that rancid framework, and it is his embrace of that framework here ("I'm going to give Bush what he wants and trample on the Constitution in order to avoid being 'weak'") that makes what Obama has done here so harmful and worthy of criticism.

Beyond that, there's just no getting around the fact that the bill Obama is supporting is another nail in the coffin of Fourth Amendment protections and privacy rights, and -- just as bad, if not worse -- will almost certainly put an end to any opportunity to find out what Bush's illegal spying entailed and to obtain a judicial ruling as to its illegality. This isn't just another bad bill. It marks a disgraceful end -- a cover-up -- of one of the most extreme Bush lawbreaking scandals (combined with legalization of many of the criminal acts), and it is a disgraceful conclusion for which Democrats are largely responsible. It's possible that Obama couldn't have stopped it even with vigorous opposition -- though it's also possible that, as the leader of the Party, he could have -- but either way, he is supporting not just a bad bill, but one that stomps on core constitutional liberties and which conceals and protects rampant lawbreaking.

I've written endlessly on all of the reasons why a John McCain presidency would be disastrous for this country. The entire last chapter of my book is devoted exclusively to documenting that fact. I have no doubt I will write much more on that topic between now and November. I still think that just as strongly. But basic honesty and adherence to one's core political values compels criticism for what Obama is doing here, and it's just distasteful and destructive -- not to mention dangerous -- for people to invoke patently false rationalizations in order to excuse or support what he's doing.

UPDATE: Two Democratic Senators actually fighting against the FISA bill -- Russ Feingold and Chris Dodd -- succeeded in blocking a vote in the Senate until after the July 4 recess (the vote is now scheduled for July 8). Jesselyn Radack -- the DOJ lawyer who became the whistleblower concerning the Bush administration's treatment of John Walker Lindh -- writes here about this success. It's only a temporary reprieve, but delays of this sort can enable further opposition to build and/or allow unanticipated events to intervene.

UPDATE II: John Dean clarifies what he said about the FISA controversy -- and, more importantly, what he didn't say -- during that Olbermann segment. There's also a tool linked at the bottom of that post created by Obama supporters for urging him to take the right stand on the FISA bill.

UPDATE III: Yesterday, I was on Michaelangelo Signorile's show on Sirius to talk about the FISA bill and related matters. That can be heard here.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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