Obama Adviser On FISA: We'll Trust The Inspector General To Prevent Surveillance Abuses

Dennis McDonough, a foreign policy adviser to the Obama campaign, said in a conference call this morning that legislation expanding presidential power to conduct warrantless surveillance of Americans' communications is acceptable to Senator Obama because the United States Inspector General will ensure accountability.

In other words, the Obama campaign's position is now that the duty and power to protect the Constitution from all enemies, foreign and domestic, now resides primarily not with the President, not with the Congress or the Courts, but with a bureaucrat created by administrative law whose job is to conduct internal investigations of government agencies.

That's a dramatic statement, but not an overstatement. The legislation that the House passed last week and the Senate will be taking up later this week not only immunizes giant telecommunications companies like AT&T from liability for violating their customers' rights under prior law -- immunity that Obama promised last year would warrant filibustering the bill, but which he now says he'll only "work" to remove -- but also greatly expands the president's ability to order eavesdrops on routine telecommunications by ordinary Americans who aren't even suspected of being associated with terrorists, which many observers see as a violation of the Fourth Amendment.

Even Obama's own supporters see the bill as an unconstitutional power grab. In an Obama campaign conference call on June 6, a prominent Obama supporter -- former senator Bob Graham (D-FL), who used to chair of the Senate Intelligence Committee and is an authority on George Bush's efforts to expand spy powers on U.S. citizens -- criticized McCain for supporting the same legislation that Obama now also supports. In that earlier call, Graham explained why current law is more than adequate to fight terrorism, and called the new legislation a "smokescreen" and "subterfuge" to secretly resurrect a large scale "data mining" operation involving millions of Americans' conversations, like the "Total Information Awareness" program that was rejected in 2003 for being too intrusive:

(A fuller post on that earlier exchange, including more analysis and audio of the question Graham was responding to, can be found here.)

The Obama campaign arranged today's press conference call in order to criticize a remark made by McCain adviser Charlie Black that another terrorist attack on U.S. soil would be a "big advantage" to the McCain campaign. McDonough and 9/11 Commission member Richard Ben-Veniste were on the call.

During the Q&A with reporters after their presentation, I pointed out that Obama's support for the new wiretapping legislation seemed inconsistent with his principled statements -- following from the Supreme Court's recent ruling upholding Guantanamo prisoners' right to habeas corpus -- that Constitutional rights are not inconsistent with safety, even in wartime, and asked whether his shift reflected an effort to immunize himself against Republican claims that he's weak on national security, especially if there were to be another terrorist attack as Black had mentioned. I described Obama's previous position as "principled" and his current position as "triangulated."

In response, McDonough didn't disagree with my characterization of Obama's position as shifting or "triangulated." He didn't disagree with my suggestion that the new legislation infringed on "the sanctity of Constitutional rights." He didn't mention any safeguards involving the balance of powers, as the Framers envisioned. Instead, he explained that the new legislation provided for a "wide ranging Inspector General report that will lead to some accountability" and said "that's why Barack Obama is comfortable supporting" the bill.

To my ear as a lawyer and an admittedly besotted lover of the Constitution, this is a damnably weak defense of an unconstitutional law that plays on people's fears and will allow presidents -- Republican or Democratic -- almost unbridled power to violate the privacy of millions of Americans' private conversations, without warrants, without any suspicion that those Americans are involved with terrorism, in the name of "keeping them safe." It's especially weak coming from an adviser to a prospective president who has taught Constitutional Law to generations of lawyers and who professes great respect for Constitutional liberties, even in wartime.

The audio of my question and McDonough's answer is here; listen for yourself:

Follow M.S. Bellows, Jr. on Twitter: www.twitter.com/msbellows

Comments

[walk0nwalls]

Obama got to where he is on ground-up netroots support, now he's about to see the extent to which they can bring him down when slighted.

Never should've listened to the establishment Obama.

[S1m0n]

Government 'fishing expeditions'--such as the program in question--ARE surveillance abuse, under every legal precedent we have.

[el8usa]

PART 1
ALL YOU NEED IS TO KEEP YOUR FAITH AND BELIEF STRONG FOR YOUR LEADER

The Untested and Non-existing Experience of Commander in Chief as McCain wants to make his case sounds in this election, like he is the War Expert just because he has been captured as a soldier during the Viet. War. McCain was a victim of the War. The States has paid him back with symbolic Hero graduation for having been suffered. He was not a Commander in chief but an offer, ok.

STOP pretending, by Profiling McCain As Best Commander In Chief, It’s not serious. It’s like using his less qualitative performance as a victim of War then entitle him as the best to be the US next Commander in Chief … ?

McCain badly needs to destroy Peoples confidence and faith by trying to underline and put in bold his defeat on FISA fight, he loosed against his smarter rival. But, How can McCain be trusted since anything he try to lights up against Obama is not honest and fair against the peoples as all he wants is to win over Obama in order to throw you the peoples in a World WAR III century. This time he is trying to make something more significant or important on remarks to his rival's strategy as a potential sign of weakness when his rival take responsibility for the best of a situation in order to protect the peoples interests, he loves to keep safe at home.

[el8usa]

PART 2
ALL YOU NEED IS TO KEEP YOUR FAITH AND BELIEF STRONG FOR YOUR LEADER

Obama has to make the smartest choice and employ at any time the right strategy that has to be taken against the enemy and this is not a fight against his promises to the peoples but against his enemy. He gives benefit to the peoples because a Fight between Politicians IS not to mix with the Peoples interests wish have to be in protection on the hands of their leader and the way Obama defends their interests is not what peoples have to worry about. Obama has to make the smartest choice in every situation and shall use any weapon to defeat the people’s enemy because you cannot behave naïve and honest while your rival is using malicious strategies in order to win over you. Obama has to make the smartest choice and once again he’s showed to peoples that he can Change strategy for the best of the peoples. Reason why all You have to do is to give your trust to the commander in Chief capable to choose and do the right thing for your Interests, yes Obama is keeping his word because at this moment and situation he knows and understands why The untested and Non existing Experienced Commander in Chief McCain, wants Obama to be captured in his WAR Game. They shall have learned that He is not against WAR, He is against DUM (stupid) WAR

[mikesw]

Sen. Obama wants to be both an agent of “change we can believe in” and the great compromiser who can work with the GOP. Good!

But not on this issue.

You cannot compromise on protecting American civil liberties and holding government accountable for failing to do this. You cannot compromise on upholding the 4th amendment.

This goes to the core of what a President should do and what needs to be fixed after 7 years of President Bush.

Sen. Obama you have lost your bearings. If you do not take a clear, strong position on this issue of central importance for America, I for one will no longer donate to your campaign.

[sclucie]

okay, i'm sorry. i suggested that you write - and did not realize that you DO write (i don't follow this site daily). anyway, your posts are incredibly helpful on this issue and i thank you for them.

but i'm confused. i thought this was a done deal. why would contacting senators now make a difference?

[M.S. Bellows, Jr. - Huffpost Blogger]

The Senate won't vote now until after the July 4 recess. New post on the politics of whether Obama should shift is here: http://www.huffingtonpost.com/m.s.-bellows/republicans-taunt-obama-a_b_109445.html

[Americanium]

Seems like this Bellows fellow has found his calling...........

[AuntSally]

The United States Congress has been unable to ensure accountability to this point; what makes Obama so confident that, all of a sudden, an Inspector General will?

[GingerB]

Unwilling, not unable.

[M.S. Bellows, Jr. - Huffpost Blogger]

Bingo. Which is why I'm so disappointed in Obama on this one: had he led the Dems to pull together for the first time in years he would have showed the Republicans their future -- and it would have terrified them.

[Furby]

Reading the comments, many people don't think that Obama's position makes sense. Supporting this bill and being a constitution lover are diametrically opposite stands. Can't help but wonder what kind of a string is attached here, what the backroom deal was on this one. It must have been a whopper considering the disappointment this has stirred up among Obama's supporters.

[oogabooga]

This is baffling. But I think they're briefing Obama on intelligence matters on the likelihood he'll be the next president. The Supreme Court's gun decision leaves wiggle room for laws to disarm criminals. I expect Obama sees wiggle room in this law to err on the side of the Constitution in weeding out fishing expeditions against regular citizens. But this is all just a guess. I'd like to hear the constitutional professor address this issue more clearly.

[AuntSally]

I hope you're right.

But what has Obama done to this point to earn such a substantial benefit of the doubt?

[Seattlelite]

His 11 record as a state legislator in IL and his senate record to date. And more than that, it may seem insignificant to some people but for me he proved his good character when he graduated a poor man from a ivy league school but instead of making mega bucks he took a pity of a salary and went to help the poor. Speaks volumes about his character in my opinion.

[Seattlelite]

I think it would be less baffling to us democrats if we stopped screaming for a minute and thought like a republican. Obama can in no way afford to been seen as being weak on National security in any respect while he's running for office. How quickly we forget what cost Kerry the election. I truly think this is what this vote is about. And if it is, he certainly can't come out and say "look I with you here but I can't give the republicans any amo to use against me". Yes, I'm taking a leap of faith here and could be totally wrong but I do know Sen. Obama is a smart man and politician. Nothing makes me believe he will abandon the constitution of this country but until the Bush administration is out of office this FISA matter and many others are out of his control. So there is no point in starting a battle you know you won't win and giving your enemy the amo to destroy you.

[Softnsweet]

Seattlelite,

It does not matter what republicans would have if obama would have voted the FISA matter down. After reading what you have written I really feel worse. Obama just threw us (dems) under the bus just to be President.

[wayoutleft]

please. the objective is to enable commercial datamining of web traffic. the telecoms want to sell access to their traffic. it will make bot farms obsolete. constitution shmonstitution- that's what's down the road here; and it's inevitable since political campaigns will be huge customers. obama just doesn't want to be on the wrong side of the telecoms.

[LeftLeaner]

Yeah, but what about now.

I can't believe he's gonna take the side of the lawbreakers, rather than that of the American public by voting for immunity for the Telecoms, who VIOLATED our PRIVACY rights.

On second thought, yes I can - a true politician!!!

[tyrdofwaitin]

I am a commited Obama supporter, but I'm very disappointed with his response to the FISA legislation; it displays an unfortunate bowing to a percieved political necessity. I don't believe he has to bend and I think Obama has taken some bad advice. That said, it's up to us to agitate for Obama to take a more principled stand: FLOOD THE OBAMA WEBSITE WITH YOUR FEELINGS ABOUT HIS STAND ON FISA. TELL HIM YOU WANT HIM TO TAKE A MORE PRINCIPLED STAND AGAINST THIS LEGISLATION. That is the democratic way. Good leadership is only possible with good followership.

[vinny]

this is the right attitude...

we supported his nomination, but that does not mean we must support him any further...

don't alienate your base obama!!!

[sclucie]

you make sense.

[meanguy]

the only sentence i could imagine scarier than, 'mom and dad, i'm pregnant', would be, "i'm from the governement, and you can trust me"

[kimbari]

What's so scary about a baby?

[Liberoservative]

If the surrogate said Inspector General, he was mistaken...
I have read the FISA amendment and it mentions The Attorney General and the
Director of National Intelligence along with the FISA to determine if a wiretap is going to be legal.. this is much different than the total disembowelment of the 4th amendment by Bush et al...
I would think that the POTUS would leave it up to these advisors to determine whether or not a wiretap would be necessary or not..
Whether or not safeguards were MENTIONED... is of no matter if the only facts you get are from the mouth of a surrogate... there are plenty of safeguards within the amendment itself...

If all you are looking for is retroactive prosecution of the telecoms instead of restoration of our 4th amendment then this article has some merit... I suggest you read the entire 114 pages of the amendment /bill.....

[badfishatlarge]

http://online.wsj.com/article/SB121391360949290049.html?mod=googlenews_wsj

Exigent Circumstances. If intelligence important to the national security may be lost or not timely acquired, collection can begin before the FISA Court reviews and approves the targeting procedures.

The AG and DNI (Attorney General and the Director of National Intelligence) must submit the procedures within 7 days and the court would make a determination within 30 days. During this period, all relevant minimization and reverse targeting guidelines would apply.

-------------
It's quite clear what the above would mean potentially ......

[M.S. Bellows, Jr. - Huffpost Blogger]

The old FISA allowed wiretapping in emergencies, too, with warrants applied for later. The new bill allows a longer period, which isn't so bad -- but also says the data acquired can still be used rather than discarded even if the court rules the tapping shouldn't have been done and denies the warrants. Why do they need to disempower judges this way, when the FISA court has only denied 5 warrants TOTAL since 1978, unless they plan to expand wiretaps to a degree they know not even the go-along FISA court would accept?

[M.S. Bellows, Jr. - Huffpost Blogger]

I respect anyone who's gone to the primary sources, but disagree with your analysis. The legislation contains purported safeguards, such as a requirement to run some surveillance proposals past the A.G. and/or court -- and then exceptions that swallow them. Surveillance not targeted at an individual doesn't need warrants -- which sounds innocuous but actually opens the door to bulk data mining, a la Total Information Awareness (which is what Graham believes the legislation's intent is). The Inspector General is indeed mentioned (Title III), and required to periodically submit a report to Congress -- but that report may or may not be based on full information depending on whether the IG was stonewalled, and may or may not be made public or even fully disclosed to all members of Congress, since they have various levels of security clearance. Reread and look closely for the loopholes. Glenn Greenwald's columns can help you identify them: http://www.salon.com/opinion/greenwald.

I've been a consistent Obama booster. I still desperately hope he wins the election. But as a lawyer with over 20 years experience, I can't see the Democrats' acceptance of this legislation as anything other than ignorance (which in Obama's case I doubt) or the elevation of pragmatic politics over the Constitution (which makes me think less of Obama than I did, even if I still think more of him than I do of McCain or, for that matter, HRC).

[gladys46]

It would be very good if those people dissenting O's stance on this bill would only read the bill with comprehension!

Clearly they have not read the bill!!

That is very puzzeling!!!

[TheIndependenceParty]

There was nothing about FISA, save the electronic transiting of foreign communications through American networks, that required changing. It has functioned perfectly for every president that met its requirements, which are not, despite unfounded rhetoric by both Democrats and RepublicRats, burdensome. It has worked 99.9 % to the favor of the requests for warrants.

This law is meant to absolve corporate collaborators of their crimes, and make boilerplate the requests for warrants in the future. It is an assault on the fourth amendment, and its immunity provisions will, I predict, be stricken by a future Supreme Court, ... but too late for providing the day in court the Plaintiffs deserve. As for the president who requested these illegal intercepts, ... his crimes will all go unpunished in this case, and any civil suits will be thrown out of court.

As they say, ... "It wasn't broke!" That is, ... until Bush broke it!