Obama, FISA and the Politics of Puffery

Update: Contact Barack Obama.
Update: See Compromising the Constitution and August 8, 1974 v. July 9, 2008.
***Bush is using the Nixon crimes-inspired FISA to immunize the very executive abuse which FISA was crafted to prevent.***

Barack Obama has taken much heat for his qualified support for the FISA capitulation to be debated and possibly voted on in the U.S. Senate this week.

The Foreign Intelligence Surveillance Act (FISA) (1978) was one of numerous post-Watergate reforms intended to check the vast executive power, in this matter of concern the power to wiretap and spy on American citizens under the invoked umbrella of national security.

A president wants to spy on Americans and claim national security rationales (misleadingly like Nixon and Bush), then a president has to answer to the FISA court as a check on the executive power preventing the president from becoming an Orwellian tyrant, dispensing with citizens’ rights at will, FISA mandates.

Bush, like Nixon before him when there was no FISA, is attempting to codify an unconstitutional executive program, violative of (among other liberties) the Fourth Amendment’s protection against unreasonable searches and the First Amendment right to engage in free speech, chilled when “(t)he price of lawful public dissent (is) dread of subjection to an unchecked surveillance power” [Landmark Supreme Court decision striking down Nixon’s claims of unlimited power to wiretap Americans under presidential claim of “domestic security;” UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)].

But one of the rare points of light in the new FISA bill (that addresses modern technological methods of communication), it is claimed, is the mandate that a court will be in place to check illegal executive branch monitoring of citizens, and that any monitoring must take place exclusively within the FISA court-approved sphere, effectively negating the power of a Bush-Cheneyesque, out-of-control presidency.

“The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court,” said Barack Obama in a statement of his support for the bill.

These things you say we have, we already have.

That’s one of the problems of the FISA bill. As Slate and others have pointed out, FISA is already the exclusive legal authority checking executive surveillance on American citizens that are made on national security grounds, and the new FISA bill, ironically, retroactively codifies the most flagrant FISA law-breaking since its inception.

Bush, and his conspirators in the telecommunications industry, have throughout his presidency utterly disregarded FISA and broken this federal statute in presidential acts of lawlessness unrivaled since Nixon.

Bush is using the Nixon-inspired FISA to immunize that which FISA was crafted to prevent. And the Democrats believe opposition to this disgusting act is too politically risky.

As Patrick Radden Keefe explains:

The Democrats' most pathetic bit of self-deluded posturing involves the inclusion of a clause suggesting that the new law represents the "exclusive means" by which 'electronic surveillance and interception of certain communications may be conducted.' According to House Speaker Nancy Pelosi, D-Calif., this means 'the law is the exclusive authority and not the whim of the president.' But, then, FISA always said that it was the 'exclusive means.' And in 2001, pretty much on a whim, the president set it aside. …

From 2001 to 2007, the NSA engaged in a secret program that was a straightforward violation of America's wiretapping laws. Since the program was revealed, the administration has succeeded in preventing the judiciary from making a definitive declaration that the wiretapping was a crime. Suits against the government get dismissed on state-secrets grounds, because while the program may have been illegal, it was also so highly classified that its legality can never be litigated in open court. And now suits against the telecoms will by dismissed en masse as well. Meanwhile, the new law moves the goal posts, taking illegal things the administration was doing and making them legal. … Whatever Hoyer and Pelosi—and even Obama—say, this amounts to a retroactive blessing of the illegal program, and historically it means that the country will probably be deprived of any rigorous assessment of what precisely the administration did between 2001 and 2007.

The Politics of FISA

The political track for candidate Obama, who undoubtedly despises out-of-control chief executives like Bush and Nixon, is to project a nuanced presidential candidate laboring under the weight of his national security commitments, and then quietly help strike the absurd passages from the House-approved FISA bill under Senate consideration.

President Bush will ultimately veto such an amended FISA if passed, leaving the issue on the backburner as gas pushes five dollars/a gallon and middle America goes further in debt leaving FISA about as relevant and compelling a political story to struggling American families as the movie Jaws II.

The compulsion driving this maneuver, rather than just calling the House FISA bill what it is, is to prevent a harebrained national media (ever desperate to assist John McCain) from creating a campaign narrative (false though it be) of McCain and national security versus Obama and fuzzy Fourth Amendment (whatever the hell that is).

But Obama need not engage in this strategy, though he is not doing so casually. There is a long and distinguished tradition of American Constitutional thought on liberty and security that can inoculate Obama from even the most craven Republican and the most foolish of talking heads.

And Obama can, in essence, plausibly assert that anything Bush and his cronies tell you on anything is wrong. That would be the politically safe and Constitutional thing to do.

We'll see what happens this week.

For a more detailed examination on the unadulterated idiocy of the FISA bill, see Glenn Greenwald at Salon.
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