Senator Barack Obama's announcement that he would support the compromise bill providing court and congressional supervision of the president's Terrorist Surveillance Program (TSP) and immunity for certain telecomm companies that cooperated with it has led to a barrage of criticism from his "netroot" supporters on his campaign website and in much of the liberal blogosphere.
But the Senator's position is not only correct on the merits from a pro-civil liberties and pro-privacy rights perspective. It also provided the Senator an important chance to demonstrate his "Sister Soljah moment."
The latter phrase is a reference to the time when then Governor Bill Clinton, in a defining moment early in his presidential campaign in 1991, stood up to the black rap star before a black audience for her anti-white attacks in some of her lyrics. The phrase has since become a metaphor for a Democrat showing the political courage to stand up to his or her liberal-left base, rather than pandering to it.
Senator Obama's change of position has angered some of his more liberal supporters -- but, I submit, only because they don't appreciate the significant legal restrictions placed on the Administration's conduct of the TSP by this legislation.
The compromise bill was essentially crafted by leading liberals in the House who see no inconsistency between civil liberties and privacy rights and protecting America from another 9/11 attack.
The compromise bill would provide strict supervision by the special FISA Court of all intelligence agency anti-terrorist surveillance activities, with strict time limits on renewal of court orders. It would require written findings and accountability by the Justice Department and individual warrants and court orders if any U.S. citizen is involved, directly or indirectly, in the surveillance. And importantly, it expands congressional oversight of the program, including the House and Senate Judiciary Committees as well as the Intelligence Committees in both chambers.
Most of the liberal opposition concerns the provision of the legislation that would allow immunity from civil cases filed against the telecomm companies that cooperated with the TSP and turned over customer data. Concern about such a precedent is understandable. Ideally it should not be a defense to violating privacy rights that a company uncritically chose to rely on bum advice from government officials. Some telecomm companies courageously refused to cooperate because they refused to accept such advice.
But, on balance, the value of effecting immediate strict legal and congressional supervision of the TSP should outweigh concerns about such a precedent -- especially since the legislation grants immunity only to those companies that can prove to a court of law that they relied in good faith on governmental advice.
No doubt Senator Obama has felt political pain to be attacked publicly by his most ardent supporters. But the benefit is that he has reminded voters that as president he would be more committed to the "solutions" business than to yield to the pressure to prove his ideological purity to his party's base. Many of the swing voters who will decide the election -- soft Democrats, independents and moderate Republicans -- have been waiting to see if Senator Obama can resist such pressure and follow this approach. Now they have a good example that the answer is:
Yes he can.
(This post is also published in today's Chicago Sun Times)
Mr. Davis, former Special Counsel to President Clinton from 1996-98, served in 2006-07 on President Bush's 5-member Privacy and Civil Liberties Oversight Board, and thus, was fully briefed and "read into" the TSP. He previously supported Senator Clinton and is now supporting Senator Obama.
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