06/30/2008 05:12 am ET Updated May 25, 2011

Is Obama Selling Out on FISA bill?

Is Obama being a shrewd pol or selling out civil liberties? That's the question raised by Glenn Greenwald's tough new column taking Obama to task for supporting the bogus "compromise" bill condemned by the ACLU, the New York Times and most of the liberal blogosphere. Greenwald takes on his fellow bloggers as well:

In the past 24 hours, specifically beginning with the moment Barack Obama announced that he now supports the Cheney/Rockefeller/Hoyer House bill, there have magically arisen -- in places where one would never have expected to find them -- all sorts of claims about why this FISA "compromise" isn't really so bad after all. People who spent the week railing against Steny Hoyer as an evil, craven enabler of the Bush administration -- or who spent the last several months identically railing against Jay Rockefeller -- suddenly changed their minds completely when Barack Obama announced that he would do the same thing as they did. What had been a vicious assault on our Constitution, and corrupt complicity to conceal Bush lawbreaking, magically and instantaneously transformed into a perfectly understandable position, even a shrewd and commendable decision, that we should not only accept, but be grateful for as undertaken by Obama for our Own Good.

Accompanying those claims are a whole array of factually false statements about the bill, deployed in service of defending Obama's indefensible -- and deeply unprincipled -- support for this "compromise." Numerous individuals stepped forward to assure us that there was only one small bad part of this bill -- the part which immunizes lawbreaking telecoms -- and since Obama says that he opposes that part, there is no basis for criticizing him for what he did. Besides, even if Obama decided to support an imperfect bill, it's our duty to refrain from voicing any criticism of him, because the Only Thing That Matters is that Barack Obama be put in the Oval Office, and we must do anything and everything -- including remain silent when he embraces a full-scale assault on the Fourth Amendment and the rule of law -- because every goal is now subordinate to electing Barack Obama our new Leader.

It is absolutely false that the only unconstitutional and destructive provision of this "compromise" bill is the telecom amnesty part. It's true that most people working to defeat the Cheney/Rockefeller bill viewed opposition to telecom amnesty as the most politically potent way to defeat the bill, but the bill's expansion of warrantless eavesdropping powers vested in the President, and its evisceration of safeguards against abuses of those powers, is at least as long-lasting and destructive as the telecom amnesty provisions. The bill legalizes many of the warrantless eavesdropping activities George Bush secretly and illegally ordered in 2001. Those warrantless eavesdropping powers violate core Fourth Amendment protections. And Barack Obama now supports all of it, and will vote it into law. Those are just facts.

The ACLU specifically identifies the ways in which this bill destroys meaningful limits on the President's power to spy on our international calls and emails. Sen. Russ Feingold condemned the bill on the ground that it "fails to protect the privacy of law-abiding Americans at home" because "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." Rep. Rush Holt -- who was actually denied time to speak by bill-supporter Silvestre Reyes only to be given time by bill-opponent John Conyers -- condemned the bill because it vests the power to decide who are the "bad guys" in the very people who do the spying.

This bill doesn't legalize every part of Bush's illegal warrantless eavesdropping program but it takes a large step beyond FISA towards what Bush did. 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. is also launching an email campaign urging Obama to keep his word on supporting a filibuster to block telecom immunity:

Dear MoveOn member:

On Friday, House Democrats caved to the Bush administration and passed a bill giving a get-out-of-jail-free card to phone companies that helped Bush illegally spy on innocent Americans.1

This Monday, the fight moves to the Senate. Senator Russ Feingold says the "deal is not a compromise; it is a capitulation."2 Barack Obama announced his partial support for the bill, but said, "It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses."3

Last year, after phone calls from MoveOn members and others, Obama went so far as to vow to "support a filibuster of any bill that includes retroactive immunity for telecommunications companies."4 We need him to honor that promise.

Can you call Senator Obama today and tell him you're counting on him to keep his word? Ask him to block any compromise that includes immunity for phone companies that helped Bush break the law.

Obama's presidential campaign: (866) 675-2008

Then, help us track our progress by clicking here.

These companies helped the Bush Administration illegally spy on the emails and phone calls of innocent Americans. By giving "immunity" to these companies, all lawsuits brought against them by civil liberties groups would be thrown out of court. That means we may never find out how far Bush went in breaking the law. And once it's done, it can't be undone. That's why we need Obama to promise to block any bill that has immunity.

Supporters of today's deal say it doesn't guarantee immunityâ€"it just kicks the issue to a court to decide. But that's deceptive. The American Civil Liberties Union (ACLU) points out:
"It gives [Bush's] attorney general the power to decide if cases against telecommunications companies will proceed. The AG only has to certify to the FISA court that the company didn't spy or did so with a permission slip from the president. A note from the president is not a legal defense. Allowing phone companies to avoid litigation by simply presenting a 'permission slip' from the president is not court review."5

The Electronic Frontier Foundation, a non-profit group working with the ACLU to hold these companies accountable, adds, "whatever gloss might be put on it, the so-called 'compromise' on immunity for phone companies that broke the law is anything but a matter how they spin it, this is still immunity, period."6

President Bush and the phone companies know that the facts are against them. A judge appointed by President Bush's father already wrote one opinion finding that "AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."7

But we'll never know how far their illegal actions went unless we fight back now. Can you tell Barack Obama you're counting on him to keep his word and block any compromise that gives immunity to lawbreaking phone companies? Obama's presidential campaign: (866) 675-2008

Then, help us track our progress by clicking here.

Thanks for all you do,
â€"Nita, Adam G., Patrick, Ilyse, and the Political Action Team
Saturday, June 21, 2008


1. "George Bush's latest powers, courtesy of the Democratic Congress," Glenn Greenwald on, June 19, 2008
2. "Statement of U.S. Senator Russ Feingold On the FISA Deal," Statement of Senator Russ Feingold, June 19, 2008
3. "Obama Backing FISA 'Compromise," Greg Sargent at TPM Election Central, June 20, 2008

4. "Obama Camp Says It: He'll Support Filibuster Of Any Bill Containing Telecom Immunity," Greg Sargent at TPM Election Central, October 24, 2007
5. "Facts on the Senator Kit Bond's (R-Mo.) FISA Proposal," June 13, 2008
6. "Prepared Statement of Eff Senior Staff Attorney Kevin Bankston on Immunity 'Compromise,'" Electronic Frontier Foundation, June 18, 2008
7. "Targeting Steny Hoyer for his contempt for the rule of law," Glenn Greenwald on, June 17, 2008

There's nothing significant for Obama to gain in the general election if he ends up going along with the bill, and much to lose in terms of his reputation for integrity and keeping his word, so it's important to keep pressure on him to oppose the new bill, especially if it contains any telecom-favoring provision.

UPDATE: Here's Obama's rationalization for supporting the current bill, while claiming he'll work to strip it of the telecom immunity provision. What's not clear in this statement or some of the blog commentary is what he'll do regarding the measure if the telecom provision stays in. Some highlights:

It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

Unfortunately, though, the thrust of his comments is that he will support the bill as written, even though he'll support -- how, he doesn't say -- efforts to remove the telecom provision, perhaps after it's already become law:

"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people."

Sadly, we expected more from Obama than this position on critical civil liberties legislation. That's why it's important to call his campaign to urge him to follow up on his promise to back a filibuster against the telecom immunity provision. Obama's presidential campaign phone: (866) 675-2008. Let him know you'd like him to stand up against the Bush administration on this issue, showing the sort of strength that can resonate with voters in the general election.

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