The Obama FISA Quandary

The bottom-up political movement that Barack Obama has been so fervently encouraging may have come too soon for his own candidacy. The social networking application (aka, "MyBO") on the Obama website hosts thousands of groups of Obama supporters all working together to help Obama get elected. They plan events, coordinate activities, and provide information and support to one another. But as of Wednesday afternoon, the largest group on MyBO, Senator Obama - Please Vote No on Teleco Immunity - Get FISA Right had a mission to pressure Obama to change his plans to vote for the FISA compromise bill (H.R. 6304) just passed by the house and currently under consideration in the senate.

Today, Obama released a statement on his blog in response to the MyBO FISA protest group. He reiterated his position that the current FISA bill is not perfect:

I know that the FISA bill that passed the House is far from perfect. I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That's why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year. The exclusivity provision makes it clear to any President or telecommunications company that no law supersedes the authority of the FISA court. In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility

In the statement, Obama also makes a promise that if he is elected president, he will have the Attorney General "conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future."

Finally, Obama's statement acknowledges that his vote on this FISA bill may be a "deal breaker" for some of his supporters, and says "that's OK."

The real quandary for Obama is that he has to win the "low-information voters" in November in order to win the election, but he needs the "high-information voters" now in order to field his grassroots operations leading up to November. Low-information voters are never going to understand FISA. It is a subject that takes time and energy to master. Low-information voters look at FISA and only see the ability or inability of the government to investigate potential terrorists. Yet a large number of high-information voters in both the left and right wing of politics understand that this is much more than an issue about national security -- it's an issue of balancing national security and individual rights. At the same time, most low-information voters only understand that FISA relates to national security. In other words, low-information voters are susceptible to fear mongering on this issue.

Mike Stark, the founder of the MyBO FISA protest group claims to speak for the members of the group (note: he does not speak for this member), and he rebuffs the media's classification of the group as being the liberal left. Stark says that he is "the center" and everyone else is to the right of his position. (Maybe he should look up the definition of the word center?) In fact, there seems to be a wide range of people in the MyBO FISA protest group. A few are threatening to withhold their support for Obama. An even smaller group have demanded the Obama campaign refund their previous financial contributions. Others have started a movement to "escrow" future donations through a service that delivers the donations to the Obama campaign after a satisfactory vote on the FISA bill. And yet others have come up with a plan to add $.35 to every donation as a way of identifying FISA reformers when donating to the Obama campaign.

But most members (at least based on the last 24 hours of emails within the group) seem to express disappointment that Obama is voting for the FISA bill and desire to change the public opinion that led to that. Many are emotional and reactionary. Some express a desire to be proactive. Few have articulated any plan to defeat the FISA bill other than to pressure Senator Obama. Those that have a plan seem to be working primarily through channels outside of the MyBO protest group to defeat the bill. In short, the group seems to be wholly ineffective in influencing the outcome of the bill -- its only purpose seems to be diminishing grassroots support Obama within his own social networking site.

The members of the MyBO FISA protest group should realize that a single senator is not enough to defeat a bill, and 17,000 not-so-committed supporters will not win the election for Obama in November, so the ever-increasing numbers of the protest group aren't helping to defeat the FISA bill (at least not in its present form) and aren't helping Obama's campaign. If the members of this group were sincere about defeating the FISA bill, they would be focusing on putting pressure on the other senators. Instead, a great number of people are here shooting themselves (and Obama) in the foot.

Because Obama needs to win low information voters in November, and many of them will be fooled by scare mongering from the right, many are interpreting the strategy as a short term sacrifice for a long term gain -- Obama sacrifices the FISA vote today to save us from a McCain-picked SCOTUS tomorrow that would uphold the FISA vote. Some are even suggesting that an Obama-picked SCOTUS would rule that the current FISA bill is unconstitutional under the Fourth Amendment.

After eight years of George Bush treating the law as his own personal wiki, an Obama presidency would be a welcome change even with his imperfections. And a McCain presidency? Well, we already know that he will be worse on every constitutional issue, including the Fourth Amendment. Pragmatics. We all need just a little dose of it sometimes.

Comments

[ouroborous]

Dawn,

We **KNOW** that Barack alone cannot defeat this travesty of a bill. Even if he did the right thing, voted against it, and used his leadership to influence others in Congress (I'm looking at YOU Harry Reid and Nancy Pelosi) to grow a spine, that might not be enough.

In fact, many of us know that the FISA bill is pretty much a done deal. We can kick and scream -- and most of us have, by calling and writing our Senators, by canceling donations, etc. -- but it looks pretty certain that Bush has won this round. We will, because of congressfolk like Reid, Hoyer, et al., simply *NEVER KNOW* what sort of illegal activities Bush & co. have been up to.

In response to that reality, we're formulating plans (see: ActBlue) to try to replace Democrats who are vulnerable in upcoming elections. We're going to give them the boot, and get more Constitution-honoring representatives in place. We may have lost this battle, but we're fighting the war.

But the MyBO group is also expressing shock and anger. OUR guy... the one who was going to bring decency, honesty, and the rule of law back to Washington... betrayed us. We'll still (mostly) vote for him, but the level of the betrayal is breathtaking. I think that maybe it's that level of emotion that you're underestimating. We want a voice to let Barack know that what he's doing is WRONG, and that we -- his supporters -- are WATCHING

[guyinAZ]

I'm glad you are sticking to your guns on this one. Frankly I think Dawn has gone way overboard trying to make excuses for Obama.

[Dick214]

Obama's "reasons" for voting for the FISA immunity is a blatant fraud. He is by his own statements an attorney specializing in Constitutional Law. Hence, he knows full well that a grant of immunity by the congress violates the ex post facto proscription of the U. S. Constitution as well as the exclusive powers of the president to grant pardons. Congress may not pass ex post facto laws and only the president may pardon criminals. Congress, once having declared some act to be criminal may not thereafter decide that some unknown group of offenders shall be immune to prosecution. This is completely beyond the pale and Obama is well aware that it is. I don't presume to know Obama's reasoning (although I thoroughly reject his explanations) but I do realize that it's an election year and the special group he wishes to protect are terminally wealthy.

[campaignman]

This is a great time for America. We are on the verge of taking a magnificent step to overcome our racist heritage and elect the first African American president. Even better, it isn't someone the GOP put forward, like Supreme Court Justice Clarence Thomas. It is a liberal Democrat. This is a stunningly amazing moment in American history that could hardly have been imagined even eight years ago.

In electing Barack Obama, we will also be rejecting a history of laws that were immorally created to perpetuate that racism. Yeah, at one time the rule of law in this society was not something to be proud of but fought against. There were "underground" railroads and civil disobedience.

Now, a handful of Obama supporters are so outraged about cutting a deal with some communications companies in order to let them off the hook economically, not criminally, on a one-time basis for taking actions that were engendered by the worst attack on our nation since Pearl Harbor. Give me a break!

Crazily, George Bush and John McCain would still benefit in the minds of voters if there were another attack. The larger public is still getting to know Barack. It is time to close ranks and fight to get Barack elected. Then, we can argue about better ways to fix the damage caused by W and encourage Barack to take tougher stands.

This is about the the Supreme Court, national health care, and changing history. Don't be left behind.

[ouroborous]

Without the Bill of Rights, a Black President will make no difference.

If you can't understand that the Constitution -- not fighting racism -- is what America worth fighting for, you're deluded.

Without the Bill of Rights, Blacks would still be slaves. The Bill of Rights is that little piece of paper that codified our intent to be a color-blind nation (even if we've had a hard time living up to that intent). The Bill of Rights is that little piece of paper that gives African-Americans at least the theoretical CHANCE to be President. Or even, free men (and women).

And Barack is going to vote for a bill that will gut an important part (the 4th amendment) of the Bill of Rights.

Think about that.

[guyinAZ]

FISA is a major step towards fascism. So just how do you think racist policies will improve when the storm troopers march down your street?

[johndomane]

Perhaps Senator Obama isn't as smart as we all think he is. if you allow this President and the big Telecom Corporations to get away with immunity for this violation of the American People and the laws that the Government elect must abide by. You only set a precedent for future acts of abuse. If there is no cause and effect, break the law and you go to jail or penalties of treason, Spy on your own citizenry get impeached then there is no deterrence to a future president committing a crime of this magnitude again.
By this capitulation obama allows the law to broken over and over again by our Governing body run by a tyrant and a despotic vice president till God knows even worse ramifications such as dictatorship arise.
This is not about left-right liberal-conservative its about BREAKING THE LAW. Its about crimes against the American people by the highest governing body in the UNITED STATES OF AMERICA our own President elect.
I have begged do not sell us out on this Bill. Please bring the law of the land our constitution to bear on this presidency and its utter abomination of rule. He is the Democratic nominee and leader and Dodd,Edwards (both),Pelosi and every democratic Senator and Congressman should follow. Goddamn it Obama LEAD!!!!!!!!!!!!!!!!!!!!!!!

[naluca]

It seems clear, post-primaries, that the great majority of those who vote will not be able to vote for a candiadate they want to be president of the United States, but against one that they like even less.
If this is an indication that we simply do not have adequate canfidates - and I think that it definitely is -
it is far more important to express that in the voting booth than casting a vote for whoever Obama seems to be on that day - which might mean not voting at all, or voting from the heart for a candidate who cannot win. This country is really in sad shape.

[530Rose]

Per Ms Teo - "The members of the MyBO FISA protest group should realize that a single senator is not enough to defeat a bill, and 17,000 not-so-committed supporters will not win the election for Obama in November, so the ever-increasing numbers of the protest group aren't helping to defeat the FISA bill (at least not in its present form) and aren't helping Obama's campaign. If the members of this group were sincere about defeating the FISA bill, they would be focusing on putting pressure on the other senators."

Dawn, you misunderestimate us. Of course we are focusing on other senators. This particular group just happens to be specific to our feelings about Senator Obama's apparent change of heart. My senators probably know me by name re: this issue, and I have either called or emailed many from other states. If there were a MyPattyMurray.com, I would be writing about how I feel about her position on FISA.

[arthuride]

"Change of heart" is another way of saying "flip flop" and it shows a true politican--say anything to win a vote, do anything to go down in history, have no principles or principals, and cater to vested interests.

[nypoet22]

dawn, i know your position on this and i want you to know i would support it 100% if i thought it would work. the problem is not those of us who understand the need to vote our interests. i happen to agree that in politics you can't accomplish jack if you don't win.

but a large segment of the voting population absolutely will not vote for a candidate who goes against what he seems to believe in. they don't demand absolute purity on issues, but they will bolt from any candidate who breaks his promises. no amount of logic and no rational argument will ever sway these people. they would rather have another bush than vote for someone they don't trust.

until this week, obama appeared to have a clearly defined set of principles, and his policy positions could all be explained vis-a-vis that system of beliefs. this doesn't mean everyone agreed with him, merely that his apparent actions were consistent with his apparent beliefs. supporting this fisa "compromise" in spite of retroactive telecom immunity flies in the face of a principle that obama appeared to stand for earlier in the campaign. that is why many voters are disillusioned and some votes have probably been lost as a result.

idealists are all too numerous, and they will not suffer a politician the violation of his own apparent ideals. THAT is why a "win first," perspective tends not to result in winning.

[530Rose]

Very clearly stated. Thank you.

The problem with Obama's current positions on FISA, Iraq, abortion, NAFTA etc lies not so much with the positions but with the fact that they seem inconsistent with what appeared to be a clearly defined set of principles.

[arthuride]

One word in your reply is correct: LIES

[Fabienne]

If a large segment of the voting population will not vote for a candidate who goes against what he seems to believe in, no one would have been voting in my 60-year lifetime. I wonder where all of the ranters were when the Patriot Act was being passed by virtually everyone in the Senate except Feingold. Where were they when the war vote came down? Edwards, Biden, Dodd, and Clinton all voted for the war, as they did for the Patriot Act. It seems that these issues are far greater than the FISA bill, which will really make very little difference to most, if any, of the ranters on these sites. There is no way I believe those who say they will not vote for Obama because of this one issue would ever have voted for him anyway. It just gives them an excuse to rage. And I have yet to meet one of his supporters out in the real world who is paying much attention to this, even the trial lawyers.

[Jennysaypa]

Dawn, you are correct. The FISA bill is going to pass.

You are also correct that Mike Stark is claiming to speak for a lot of people, which he doesn't do. In fact, Jon Pincus seems to be doing the most in terms of creating a strategy before the vote. People need to put aside their egos over who was first and look at the best way to get something done.

Me and a few other people are thinking about the post-FISA world and have launched a PAC to plan for the long term in getting the law rescinded, and to vote out the politicians who vote for the bill at the ballot box the next time their heads come up on the chopping block. This doesn't include Obama, because the fact is that he is now the lesser of two evils, although a lot can happen in four years.

[Dawn Teo - Huffpost Blogger]

Jon Pincus seems to be doing an amazing job. I have been extremely impressed with him. I should have given him some credit in my article.

Are you in touch with Jon about the PAC? Can you email me information about the PAC that you have formed? I am very interested in this. dawn (at) rightoffcenter (dot) com

[Sebastian11]

I read Obama's explanation of his "Position on FISA", and I said I was satisfied with his explanation in my comment to it. He said he will be fighting Title II of the bill, that grants retroactive immjunity to telecommunications companies, with the help of Senators Chris Dodd and Jeff Bengaman. He did not say if he still would vote for the bill, in the event that Title II is not deleted. However he further explains that it is a compromise bill with exclusive provisions that makes it clear to any President or telecommunications company that no law supercedes the authority of the FISA court. What I get from this is that with Title II deleted the bill would not give the president unlimited authority. I am not sure if he said that the bill contains provisions for "an independent monitor to watch the watchers to prevent abuses and protect the civil liberties of the American people.

[MQuintus]

Ms. Teo, the central premise of your article is incorrect. It is not the FISA bill (H.R.6304[PCS]) that is at issue. It is only Title II of the bill which gives some telecoms immunity from civil complaint for their allegedly illegal spying actions between September 11, 2001 and January 17, 2007. (Note that Quest knew the orders from the White House were unconstitutional, and refused to participate.) Also, while it is true that no one Senator can pass or defeat a bill, one Senator can (a) introduce an amendment and (b) LEAD his colleagues in adoption of the amendment even to the extent of a filibuster.

If this nation is to be a society of laws, not a posse of men, someone has to fight hard for the rule of law. The rule of law demands that a court, not the executive or legislative branches, decide what the law is and how it applies. I don't know if you, as I, have attended a law school and spent years studying Constitutional law. But I tell you with great sadness that for the first time in my now long life I worry that our nation is headed down a familiar path toward dictatorship. None other than retired Supreme Court Justice Sandra Day O'Connor also expressed that worry last year.

I am a strong supporter of Senator Obama. But if he cannot exhibit leadership on this clear-cut issue, he cannot be trusted. It is as simple as that.

[Dawn Teo - Huffpost Blogger]

There are actually problems with both the bill itself and Title II, but I did not want to get into any part of the bill in the article because my point really had nothing to do with *what* was being protested. Rather, I wanted to make a point about *how* people are protesting it.

[ouroborous]

Read Greenwald (unlike me, he's a Constitutional scholar, so he can say it better); there are very serious problems with the entire bill re the 4th amendment.

The bill should be scrapped. The immunity provision -- which is important, don't misunderstand me -- is just the lightning rod for this storm.

[coloneblog]

Please, no more imperfections in our leaders. A FISA bill with telecom immunity should be rejected by all Democrats to include Obama. Stop protecting the corrupt Cheney/bush Administration. Nuancing the telecom provision in the bill is just more "inside the beltway bullshit!"

[pixy242a]

A lot or progressives are UNDERSTANDABLY upset. I think Dawn Teo has a point. Many other posters have given good reasons why Obama should be allowed some leeway, considering the alternative of 4 more years -- i am offering some quotes i found on the web which i think might apply

Democracy is being allowed to vote for the candidate you dislike least. ~Robert Byrne

We'd all like to vote for the best man, but he's never a candidate. ~Frank McKinney "Kin" Hubbard

I'm not a leftist; I'm where the righteous ought to be. ~M.M. Coady

[jpetaluma]

Let's just keep this simple. Obama is our best hope in a generation. Lots of you have convincing arguments regarding his position on FISA. I just want him elected. One thing the Republicans have going for them is party loyalty. Dems lose because we constantly eat our own. We need to win, people.
There's dissent and then there's sabotage. Could we debate his positions while not wavering from our active and uncompromising support. Uncompromising support isn't compromising your priciples. It's how we are going to win with an AA candidate against a very determined and often corrupt opponent. Dems rarely win because we withdraw support when dissappointed. That's not change we can believe in. Help, somebody!

[Tunnelista]

Thanks for the article, Dawn. I have been telling people for the last 18 months that Barack is guaranteed to take positions that not everyone will agree with, myself included. I have always known that he is not as liberal as I am yet I have supported him in the past and continue to support him today. He has shown himself to be capable of extraordinary things and he has the potential to be a truly great president but only if he is given the opportunity to serve. No one ever promised that everyone would get everything they wanted from any candidate. This is the real world. Even in the most progressive places like San Francisco, there are ongoing battles between those who believe their opponents are not liberal enough. Give and take is part of the political process. Let's make sure that don't give this election to the Republicans, letting them take away what is left of our country. United We Can!!

[ouroborous]

I think that there is one position that EVERY American (left, right, and "center") should believe in and support: defending the Constitution.

In fact, that is the bulk of the oath of office for both congresscritters and the President: to support and defend the Constitution from all enemies, foreign **and domestic**.

That is the oath that is being broken by Bush, Cheney, Hoyer, Reid, Pelosi... Obama?

This isn't just a single-issue voter type of thing. This is core American governance; once we compromise this, we're in seriously deep doo-doo (throw checks and balances and the rule of law out the window, and see how many years it is before America is a functional dictatorship).

[Janelynne]

It isn't a good enough reason to vote for Obama, simply because he is fun to listen to. This FISA legislation is a real deal breaker, and if BO stacks one more of these very poor judgement votes on his pile, then he could be in real trouble. As a Democrat (not a sheep,), I do not want a President with a poor grasp of the Constitution. Obama better get Clinton on his ticket to bolster his depth. We are not voting for another light weight, and if one gets in office this year, I do not want to be part of it.

[SanityClaus]

You lost me when you brought up whats-her-name. Now I have to clean vomit from my keyboard, thanks a lot!

[Fabienne]

I am very interested to know, once this Bill is passed, how many of you will be affected by it or know anyone who has been affected by it. I do hope you let us all know about those whose lives have been disturbed by it. Of course, passage of this bill will disturb far more lives than would the election of McCain.

[Fabienne]

Clinton will "bolster his depth"? What? In starting a war with Iran? I know a very close friend of the Clintons who supported Hillary wholeheartedly in the primaries, but when he told me, at the beginning of the 2004 primaries, that the Clintons would be supporting Edwards in 2004 because they thought he was a loser and they wanted her to run in 2008, that was enough for me.

[Dick214]

Quandary here!

This bill that Obama supports is, in my very humble opinion, unconstitutional. The article that prohibits ex post facto laws in the United States doesn't parse the term one tittle. An ex post facto law (from the Latin for "After The Fact") or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. Congress is, in effect, usurping the presidential power of the pardon in exempting any class of criminals from prosecution en masse. Frankly, to my knowledge even the presidency since 1789 has named individuals in the pardoning process and not immunized entire classes or groups of criminals. This, I sincerely believe, is patently illegal.

Dick Hudson in Illinois

[lauraq]

I believe the problem of constitutionality with an ex post facto or retroactive law has to do with IMPOSING A PUNISHMENT on conduct that was not against the law at the time the person (or class of persons) engaged in the conduct. If Congress is REMOVING a potential punishment from what may (or may not) have been against the law at the time an action was done, that's the opposite of imposing a penalty ex post facto or retroactively. Therefore, that's not unconstitutional. The fact that individuals may feel deprived of a potential claim that their privacy was violated is a separate issue.

When amnesty was granted for undocumented workers in the 1980's, that was a Congressional action. Ex post facto/retroactivity didn't apply then--or now.

The President's pardon power is not "usurped" by Congressional authority to allow immunity for past conduct. They each have their own powers.

[BlaineKinsey]

Although the pending FISA legislation, if enacted, would not be considered an "ex post facto" law under existing legal precedents (which, you correctly explain, limit applicability to imposition of criminal sanctions retroactively), it should be considered an "ex post facto" law because, with respect to civil law, it selectively advances the interests of one group at the expense of another group. The pending FISA legislation, if enacted, also would usurp the power of the Judiciary by preventing the plaintiffs, in the pending lawsuits against the lelecoms, from receiving the due process of law. It is extremely unlikely that Federal courts would agree with me.

[afed27]

I liken this "not perfect" bill to the Medicare/Prescription bill foisted on seniors in 2003. It also was "not perfect". Trent Lott vowed that he would fix the bill, later. Did he ever do it? Of course not! I wrote to him a number of times, reminding him of his promise but he left Congress to become a lobbyist [ for a drug company?] & the bill was never amended. Medicare is forced to pay whatever price the drug companies ask, no bargaining allowed. Seniors are not allowed to purchase cheaper drugs elsewhere, either. The year is just about 1/2 over and I am 1 medication away from my do-nut hole, causing me to have to pay out over $4,000, plus my $40 monthly payment to the prescription plan I was forced to take, before I can get additional coverage. Thank you, Mr. Lott!...And now, Obama wants to vote for the "not perfect" FISA bill, saying that, later, adjustments will be made to it. Really? Just do not vote for the bill!. Write a good one! Better there be no bill than a "not perfect" bill that , just maybe,
and most probably, will never see a change!