Sunday, June 22, 2008

The FISA/telecom amnesty travesty

The bill hasn't passed yet. The Senate is still set to debate it last year. But Obama's position on this has been terrible. And, as it stands now, the Senate Democrats are happy to capitulate - actually, to give the administration more than it expected to get. This is where the Democratic base needs ways to bring heavy pressure on Congress in a very short time frame. Some Democrats, including Obama, should live up to their promises to attempt to filibuster this thing. I'm down with Glenn Greenwald's take on this on in Obama's support for the FISA "compromise" Salon 06/21/08:

It's either that he "chickened out" or - as Yale Law Professor Jack Balkin asserts and Digby wonders - Obama believes he will be President and wants these extreme powers for himself, no doubt, he believes, because he'll exercise them magnanimously, for our Own Good. Whatever the motives - and I don't know (or much care) what they are - Obama has embraced a bill that is not only redolent of many of the excesses of Bush's executive power theories and surveillance state expansions, but worse, has done so by embracing the underlying rationale of "Be-scared-and-give-up-your-rights." Note that the very first line of Obama's statement warns us that we face what he calls "grave threats," and that therefore, we must accept that our Leader needs more unlimited power, and the best we can do is trust that he will use it for our Good.

Making matters worse still, what Obama did yesterday is in clear tension with an emphatic promise that he made just months ago. As the extremely pro-Obama notes today, Obama's spokesman, Bill Burton, back in in September, vowed that Obama would "support a filibuster of any bill that includes retroactive immunity for telecommunications companies." MoveOn believes Obama should be held to his word and is thus conducting a campaign urging Obama to do what he promised -- support a filibuster to stop the enactment of telecom amnesty. ...

Incidentally, Chris Dodd made an identical promise when he was running for President, prompting the support of hundreds of thousands of new contributors, and he ought to be held to his promise as well. (my emphasis)
This crass example of class justice and dangerous concessions of police-state powers to the Executive Branch really, really needs to be stopped.

Over at Firedoglake - which is now being edited by Dave Neiwert - Ian Welsh has a good post framing the dilemma the Democratic base faces right now, Building a Progressive Democratic Party 06/21/08. The word "labor" doesn't appear in it, so it's far from comprehensive. A progressive Democratic Party without a reinvigorated labor movement that represents a significantly larger portion of workers than it does today doesn't appear likely to me. But Welsh does get this right:

Whatever sympathies Obama may have for liberalism, or even for the Constitution, he cannot be trusted to fight for either if he feels it is not politically in his interest.

The calculation is simple enough: liberal and progressive voters will hold their noses and vote for him anyway. Moving right increases the range of people he can appeal to and costs him very few votes. Three supreme court justices, after all, are held hostage.
And he discusses two essential elements of getting the Democratic Party to where it needs to be: money and votes. He writes:

What this means is not just donations, nor volunteering. It means building up an infrastructure and a cadre. It means being able to put a machine on the ground which can do registering, canvassing and GOTV. It means having a message machine, from think tanks to ad agencies to reporters and columnists who actually believe in liberalism. It means being able to funnel money to those who need it and can use it. It means having a media machine which can reliably communicate with both the base and the population in general.

With that you remake the party. You do it one incumbent at a time. When they retire you make sure that the person who replaces them is as liberal as possible. When they don't retire, you pick your fights and primary the most egregious ones. Even if you fail (and the right fails more often than they win) the near-death experience is a warning shot across the bows that changes behaviour. (Notice how quiet Specter has been since his near-death experience.) You can do that because you can put a machine on the ground, you can provide policy through your think tanks, you can spread messages through your media and you can pump money where it needs to be when it needs to be. ...

Because no single person is going to save the Democratic party, or the US. Obama, as he just proved, won't. But, to be fair, neither will anyone else. No one person can do it, not even someone who really wanted to. As FDR once said "now make me do it." To get the government and the politicians you deserve you'll have to deserve them. And you'll deserve them by making them do the right thing, not expecting them to. (my emphasis)
Obviously, it's easier to write or talk about than to do. But that's the situation we need to bring into being. If it sounds a bit familiar, it's because Welsh is looking at the example of the transformation of the Republican Party since 1964. That's why they have a solid phalanx pushing for telecom immunity and police-state powers for the President, and we have some big portion of the Democratic Party elected officials trembling in fear that they'll be accused of being sissies if they defend the Constitution.

The Balkinization blog has been providing coverage on the FISA bill and related issues for years now. The Jack Balkin post to which the Greenwald quote above refers is Why Obama Kinda Likes the FISA Bill (But He Won't Come Out and Say It) 06/20/08. Balkin gives an unsentimental, Jeffersonian view of why Obama likely supports the FISA bill:

Barrack Obama plans to be the next President of the United States. Once he becomes President, he will be in the same position as George W. Bush: he wants all the power he needs to protect the country. Moreover, he will be the beneficiary of a Democratic-controlled Congress, and he wants to get some important legislation passed in his first two years in office.

Given these facts, why in the world would Obama oppose the current FISA compromise bill? If it's done on Bush's watch, he doesn't have to worry about wasting political capital on it in the next year. Perhaps it gives a bit too much power to the executive. But he plans to be the executive, and he can institute internal checks within the Executive Branch that can keep it from violating civil liberties as he understands them. And not to put too fine a point on it, once he becomes president, he will likely see civil liberties issues from a different perspective anyway.

So, in short, from Obama's perspective, what's not to like?
Balkin stresses that there are two major parts of the bill. Telecom amnesty is one. Expanded Executive power on surveillance is the other. He concludes:

If you really care about civil liberties in the National Surveillance State, you have to recognize that both parties will be constructing its institutions. The next President will be a major player in its construction, as important if not more important than George W. Bush ever was. That President will want more authority to engage in surveillance, and he'll be delighted for Congress to give it to him officially.
Balkin warns that the expanded surveillance portion of the bill is "where your civil liberties will be defined for the next decade." The scare talk from the administration about this bill has to do with cleaning up some technical issues (e.g., having to do with e-mail) on monitoring foreign-to-foreign communications. Modernizing this aspect is widely accepted even by the most severe critics of the administration's proposed changes. The controversial aspects have to do with expanded powers for warrantless surveillance on American citizens in the US.

All this is on top of the Unilateral Executive doctrine supported by Cheney, Bush and McCain that says the (Republican) President has "inherent" powers to spy on anyone he wants any way he wants, legal or not, as long as he claims it's about "national security". And what isn't, these days?

For a fairly detailed description of what is involved in the FISA update part of the bill, see Modernizing the Foreign Intelligence Surveillance Act [n.d, accessed 06/21/08]: A Working Paper of the Series on Counterterrorism and American Statutory Law, a joint project of the Brookings Institution, the Georgetown University Law Center, and the Hoover Institution by David Kris. Kris is also currently blogging on the issues covered in that paper in a more compact form at the Balkinization blog.

For reference, earlier Salon posts by Glenn Greenwald on the topic:

McCain, spying and executive power: A complete reversal in 6 months 06/03/08

NYT circulates fear-mongering claims on FISA debate 06/10/08

British debate highlights the cravenness and complicity of congressional Democratic "leaders" 06/15/08

Obama, telecoms and the Beltway system 06/19/08

George Bush's latest powers, courtesy of the Democratic Congress 06/19/08

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