Obama's "Sister Soljah Moment" on the Surveillance Bill

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.

Comments

[tyrdofwaitin]

Thanks Lanny. Read his two books and you know we cannot not rely on Barack Obama for ideological purity. As an old leftist myself (I now answer to the moniker "progressive") it has become clear to me over my 60+years that ideology, doctrine and orthodoxy are the beginning of the end for true democracy; doctrine is pure and pristine; democracy is messy and slow; ideology feels good, but falls flat when ideology trumps decency and good sense; orthodoxy makes us feel safe in the face of a chaotic world; democracy is filled with unknowns and odd turns. Faithful adherence to ideology has fostered murder, war, famine and cultural hellfire! Hilter was driven by ideology as was Stalin, Mao and ---- Bush and Cheney. Which brings me to Sen. Obama.

He will be devoting a couple of weeks this month to Platform Meetings all over the country. The cynics will say ... "So what!" The rest of us will say ... "Awesome stuff! Is our democracy at a tipping point for the better?" I don't want ideology from my president; I want results. Obama has delivered for over a year and a half on his promise to be "audacious", " hope-filled", largely candid --- even when we disagree --- and a superlative manager of campaigns and people. What's more, he's a sweety. For heaven's sake, what more do you want from this guy? He HAS delivered on his promise for "change". Has there ever been a political season such as this?

[Michale32086]

With regards to Section 702 as posted by some who claim a Constitutional violations..

``SEC. 702. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE THE UNITED
STATES OTHER THAN UNITED STATES PERSONS.

Section 702 does not apply to US Citizens, excepting for the increased 4th Amendment protections held within same..

Also, GaNavy, in another commentary, makes an excellent point about the word "intentional" that has been mentioned:

GaNavy:
"1) A communication covered by FISA necessarily involves a person located inside the US and one located outside the US. So to at least some extent, the 'intentional' language is surplusage and as such, under normal principles of statutory construction - note, this is NOT a constitutional issue - would be ignored by an interpreting court.
2) Warrantless wiretaps of Americans are prohibited by the amended FISA. Under normal principles of statutory construction - again, this is NOT a constitutional matter, that provision is more specific than the language you quote (because it specifically applies to US citizens, whereas 702 does not) - therefore, the warrant requirement trumps 702. Inclusio unius est exclusio alterius.

There is a BIG difference between statutory construction and constitutional interpretation."

So, the INTENTIONAL argument is hereby refuted..

Michale.....

[bgregs]

Wow, you actually came out with an argument that, to some extent, challenges me. I'm impressed. This is MUCH better than your traditional argument about "it doesn't apply"

However, now let's get involved in section 702, shall we? You are correct that the language about "intentionally" would normally be disregarded by the courts, since FISA does apply to FOREIGN communications. Furthermore, since warrantless wiretapping is illegal on US persons under old FISA, new FISA and the Constitution, it would appear that there's no problem. However, section 702, subsection 4 says:

"Nothing in title I shall be construed
to require an application for a court order under such title
for an acquisition that is targeted in accordance with this
section at a person reasonably believed to be located outside
the United States."

This means that if the AG and the DNI decide that a wiretap does NOT violate the requirements of subsection b, then they can wiretap WITHOUT a warrant, whether or not they are correct (or even truthful with themselves) about subsection b. Because of the fact that there is no oversight, the likelihood of purposeful illegal warrantless wiretaps becomes an unacceptable risk. This bill is unconstitutional because of THAT subsection!

[Michale32086]

After two weeks of reading exclusively from the LET'S BEAT OBAMA AND LET IN MCCAIN crowd, it's nice to see a commentary that reflects the facts and not the overblown hysteria and fear-mongering of the Anti-Obama crowd...

HR6304 has ZERO Constitutional conflicts.... FACT

HR6304 actually strengthens 4th Amendment protections... FACT

HR6304 ONLY allows TelCom immunity where good faith can be shown... FACT

Senator Obama's wisdom in supporting HR6304 is proven. He won't be dictated to by the extremists on the Right or the hysterics on the Left...

I am proud to support Senator Obama for President...

Michale.....

[bgregs]

All three of your "FACT"'s are not any such thing! In number 1 you come out claiming that there are "ZERO Constitutional conflicts" in spite of the fact that I and others have pointed out to you MANY times that there ARE Constitutional conflicts which MUST at the VERY least be examined!

number 2 claims that there are STRONGER protections, never mind what I already pointed out to you in number one!

Number 3 claims that the telecoms only have immunity if good faith is shown. That would be fine, except that it has already been pointed out that they merely need show the court that the govt asked the telecoms to break the law, which we ALREADY know that they did!

See the thing is that the telecoms KNEW that under the law (as it existed then!) a warrant was required! What happened to their LAWYERS who had a responsibility to say "NO, this is illegal" when the govt asked them???

[Michale32086]

I am SO very happy to read this article..

It's nice to see a HuffPo commentator that actually gets this..

HR6304 has NO Consitutional conflicts. This is a fact..

The TelCom immunity is a judgment call by Senator Obama and the majority of Democrats in the House and Senate.. Personally, I agree with the decision, as I feel that opening up the TelComs to every American being able to sue them for thousands or more would just totally devastate our telecommunications infrastructure. So I agree with Senator Obama. But I can understand how some wouldn't be in favor of that. That's kewl...

But this active and concerted campaign to derail Senator Obama in November is unbelievably short sighted and narrow minded.. There are threats of withholding campaign donations and such. Ironically enough, the hysterical Left has made it IMPOSSIBLE for Obama to change his position. Because, if he did, he would look weak and ineffectual and the GOP would simply crucify him in November...

Nice to see that SOME HuffPo people get it..

Michale.....

[bgregs]

And yet the bill is MUCH weaker on civil liberties than the CURRENT FISA law. Since THAT law requires a warrant (remember those, fourth amendment and all???) for ANY time a law enforcement or intelligence agency wiretaps someone. This NEW law allows them to tap a phone without a warrant, as long as they don't INTENTIONALLY tap an American. How is that BETTER???????????

[JohnFromCensornati]

"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."

His party's base does not like this type of "solution".
I have read countless ludicrous posts about how Nader cost Gore the presidency, but it just might happen to Obama.

[MyNameIsJames]

Hillary Clinton thought that she could "Sister Souljah" the anti-war wing of the Democratic Party and she got burned. So now Obama feels that he can do the same thing on FISA? Unlike 1992, there is no Ross Perot to peel off 19% of the general election vote. Don't forget no Ross Perot -no Clinton presidency.

You Democratic political consultants keep underestimating the passion and desire to return to a progressive VALUES-BASED political agenda within the Democratic Party. You are still advocating for a tired and obsolete political strategy that has been rejected by the most hardworking and passionate portion of your party. You think that you can score political points with the "center-right" by alienating the heart and soul of your party. Good luck with that!

The nation is tired of the Republican playbook and Conservative rhetoric as well as the timidity of the Democratic Party --yet you keep offering the same warmed over bull####.

Your advice is based in a lack of faith in "liberalism" and the inability to speak to the American public in a clear and convincing voice. Instead you offer a slithering and slimy strategy designed to spin the American public. If they wake up -- You, the Clintons and an increasingly wavering Obama will be out on your asses.

[4wehttam]

Is this the REAL Lanny Davis? I can't believe my lying eyes.........please someone, did I just read this correcly? Is Lanny DEFENDING Barack's position of FISA? He must be suffering from pneumonia or something. Oh wait, his beloved leader Hillary voted the same way Barack did......he had no choice I suppose, but hey he could have kept his mouth shut and not defended it at all. Well, for the first time I say this to you Lanny.............................................Thank you. I agree with Obama and other democrats on the bill, the compromise is the best we can get at this time.

[MyNameIsJames]

There is no doubt that this "compromise" is a symptom of the lack of courage that our elected officials display when it comes to public accountability.

Immunity for possible illegal actions - yet disclosed is very dangerous especially when it comes in the form of collusion between the federal executive branch and private industry.

Mr. Davis, you and the whole political establishment in Washington are deaf and blind to the damage being done to the integrity of our democracy. You can justify such action because your type have grown timid and you abhor any type of confrontation that may cause significant conflict within the status quo.

[idahogie]

This is exactly why I fought against the nomination of Hillary Clinton - the kind of people she surrounded herself with did not inspire confidence.

Your argument here will play well over at your new job, Mr. Davis, but it doesn't make any sense in the real world.

[Raven]

Lanny, you have got to be kidding when you say,

"But, on balance, the value of effecting immediate strict legal and congressional supervision of the TSP should outweigh concerns about such a precedent"

because if you're not completely illiterate, you must know that is a total crock.

The immediate strict legal and congressional supervision is already there - all Congress has to do is grow a spine and pretend that they're actually doing their jobs.

To pass a new law to give Congress powers they already have is a joke. Bush doesn't care.

And what? This is going to allow them to stand up to him? And they just have to give away even more of our rights so that they can now have the power they already had anyway?

Please. What pure nonsense.

[idahogie]

This is exactly why I fought so hard against Hillary Clinton's nomination.

[PixelMarx]

Lanny, I've hardly agreed with you in the past, but this time I think you're spot on. This uproar is a lot of hot air coming from the far left of the party, and in some ways they are helping Obama by their outrage - he's looking more like the attractive centrist he needs to be to gain with independents and moderate republicans. And in the end, I'm fine if some of the outrage goes to Nader - they can be outraged for eigh more years if they want to go that route.

[xenofile]

"correct on the merits from a pro-civil liberties and pro-privacy rights perspective. "
"protecting America from another 9/11 attack"

This is why I hate Democrats. (And Republicans.)

You're all freakin' cowards. I am NOT AFRAID of a stinkin' terrorist or some possible "attack".
I am MUCH MORE AT RISK every time I get in my car.
And Lanny Davis apparently has no real concept of civil liberties or privacy.
I forgive Obama for his cowardice -- what choice do I have? McCain? -- but this is beyond mealy-mouthed apologism, Davis is actually saying it's a good thing to give up our freedoms for NO BENEFIT. This is obscene.

[CaptainObvious]

"But the Senator's position is not only correct on the merits from a pro-civil liberties and pro-privacy rights perspective."

Yeah, just ask any of the "pro-civil liberties" and "pro-privacy rights" groups how excited they are about the upcoming bill. The ACLU is getting pretty excited.

[Michale32086]

Yet, even the ACLU concedes that HR6304 does include increase court oversight.. Of course, they try and poo-poo it away, but they concede the point..

Michale....