Reflecting on the Democratic Platform -- Get FISA Right
The relationship between Get FISA Right, Barack Obama and the Democratic party platform is a unique one. A little over a month ago, Barack Obama sparked a movement on his own website when he announced his decision to vote for the FISA Amendments Act. Within 2 weeks, there were some 24,000 members of a my.BarackObama.com group called "Sen. Obama, Please Vote NO on Telecom Immunity and Get FISA Right". Sen. Obama responded to their critique of his position. Some of the Obama supporters who felt so passionately about the issue went on to create a group called Get FISA Right, and almost immediately took advantage of the Obama campaign's plan to make the platform process inclusive. Members of Get FISA Right prepared proposals for the platform regarding FISA and civil liberties issues, and then attended platform meetings across the country.
So how does the draft platform compare with Get FISA Right's proposals? (You can compare and contrast word for word at the bottom of this piece).
After eight long years of a complete disregard for civil rights and liberties that freaked out the otherwise unflappable Molly Ivins, reading these sections on civil liberties was inspiring. It's an unmistakable commitment to return to the rule of law. The draft platform makes use of the comprehensive approach Get FISA Right took on the issue of Constitutional rights and the theory of unchecked unitary executive power, which is the appropriate response to the wholesale attack on our liberties.
However, there are a few unanswered questions.
Although the draft language on wiretapping says all the right things, it leaves the door open for those - including various Democratic Senators - who claim that under the FISA Amendments Act wiretapping is under judicial oversight and in keeping with the Constitution. It's also unclear as to whether or not this constitutes a pledge to reform the flawed FISA Amendments Act passed this July.
The platform does include the "comprehensive review" of government surveillance programs Sen. Obama promised us. Sen. Obama said that such a review would lead to taking "any steps needed to preserve civil liberties and to prevent executive branch abuse in the future"; presumably review will lead to reform, but reform isn't specified in the platform.
There's no mention of the issue that perturbed so many Obama supporters so much: telecom immunity. Nothing in the platform suggests that either the administration officials who ordered illegal phone tapping and email tracking of US citizens, or the telecommunications companies who broke the law when they carried out those orders, won't be getting away with it. The omission is particularly intriguing in light of Sen. Obama's repeated votes against telecom immunity, which he has described as "an important tool for the American people to demand accountability for past abuses."
Going from FISA specific questions to the broad array of civil liberties issues, another problem emerges.
The platform goes beyond repudiating the unlawful and unconstitutional behavior of the past 8 years to taking aim at the Bush administration's legal underpinnings of those policies. The draft promises to overturn the executive decisions, an end to signing orders, and rejects the theory of unchecked executive power. There is even a pledge to "revisit the Patriot Act". Unfortunately, there is no such pledge regarding the Miltary Commissions Act. Our democracy can't afford to leave such a flawed law on the books in its current form. It's a matter of practices as well as law - the platform promises to change the practices, but it doesn't promise to change the laws that made those practices possible. Nor does it promise to hold anyone accountable for the lawbreaking and civil liberties violations of the past 8 years. That's a disquieting combination. It would be shameful if the restoration of the rule of law and the Bill of Rights heralded in this platform would some day be negated by future administrations.
The platform section on civil liberties:
We reject the use of national security letters to spy on citizens who are not suspected of a crime. We reject the tracking of citizens who do nothing more than protest a misguided war. We reject torture. We reject sweeping claims of "inherent" presidential power. We will revisit the Patriot Act and overturn unconstitutional executive decisions issued during the past eight years. We will not use signing statements to nullify or undermine duly enacted law. And we will ensure that law-abiding Americans of any origin, including Arab-Americans and Muslim-Americans, do not become the scapegoats of national security fears.
We will not ship away prisoners in the dead of night to be tortured in far-off countries, or detain without trial or charge prisoners who can and should be brought to justice for their crimes, or maintain a network of secret prisons to jail people beyond the reach of the law. We will respect the time-honored principle of habeas corpus, the seven century-old right of individuals to challenge the terms of their own detention that was recently reaffirmed by our Supreme Court. We will close the detention camp in Guantanamo Bay, the location of so many of the worst constitutional abuses in recent years.
In comparision, Get FISA Right proposed:
* Stop government practices that violate the constitutionally guaranteed right to free speech, privacy, and due process, including warrantless surveillance on Americans, secret evidence in military courts, torture, illegal imprisonment of U.S. citizens and others, and arbitrary racial and religious profiling.
* Repeal or substantially amend laws that violate constitutionally guaranteed rights, including the Patriot Act, the FISA Amendments law, the Military Commissions Act, related executive orders, and executive signing statements. Replace these with laws that reaffirm our fundamental rights and hold accountable all parties who violate those rights.
* Restore constitutional rights that the Bush administration has eroded through its lawless theory of unchecked executive power, including dissent, free speech, assembly, habeas corpus, privacy, due process of law, and equal protection.
The platform on illegal wiretapping:
We support constitutional protections and judicial oversight on any surveillance program involving Americans. We will review the current Administration's warrantless wiretapping program. We reject illegal wire-tapping of American citizens.
vs. Get FISA Right's proposal:
* Repeal or substantially amend the FISA Amendments Act, which threatens Fourth Amendment and other fundamental rights. Replace the FISA Amendments Act with a law that restores fundamental rights and holds all parties accountable who violate those rights.
* Conduct a full investigation of illegal government surveillance programs, make public the legal opinions that justified them, and hold accountable those who ordered illegal warrantless surveillance.
* Restore the rule of law and end unchecked unitary executive power by bringing to justice all corporate entities, government agencies, and persons who violated the Fourth Amendment and other fundamental rights.