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.
- via mal contends -

Misty Water-Colored Memories

by folkbum

A lot of the right Cheddarsphere--and blogosphere as a whole--have been up in arms lately about Howard Dean. I mentioned Dean in the post below, and, if you're a liberal blogger of the same vintage that I am, you probably have some of the same rose-colored memories of those heady days that I do.

I bring this all up because Glenn Greenwald posted yesterday a long excerpt of a Dean speech from February of 2003, a speech in which he made more accurate predictions about what would happen in Iraq than members of the Bush administration ever did.

Which leads me to ask my right-Cheddarspherean friends: Are you so mad at Dean all the time because he was right and you were wrong? I don't know what else explains it . . .

Cognitive Dissonance

From Glenn Greenwald:

So, to re-cap the rules: (1) When a pro-war politician gives a pro-war speech as part of a graduation ceremony, and students in the audience heckle and boo him, that shows how Deranged the Angry Left is--because they heckled a pro-war speech. (2) When an anti-war politician gives an anti-war speech as part of a graduation ceremony, and students in the audience heckle, walk out and even riot, that also shows how Angry the Left is--because they "provoked a near riot" by pro-war students.

I could never be a conservative, because this--believing two contradictory things at once--is too much work for my lazy head.

Glenn Greenwald Rocks

I shouldn't really have to say that, but I will. Greenwald is a civil rights/ first amendment attorney, who has been focusing on the fairly regular lawbreaking by the Bush administration. He is doing work that needs, simply, to be done. His new book is the only serious, scholarly work examining where and how the Bush administration is deviating from tradition and from generally understood principles of constitutional law.

Now, I know what some of you are thinking: Oh, yeah, another moonbat with Bush Derangement Syndrome. Not true. Greenwald explains:

Contrary to [NRO columnist Byron] York's somewhat sloppy claim that the book "is an indictment of George W. Bush of the sort that has become commonplace on the Left in the last few years," the reason I wrote the book is precisely because the issues it discusses have been largely (and inexcusably) ignored in our national political discussions.

Over the last five years, our country has been gradually though incessantly changing in fundamental and radical ways. The things we see and hear our government doing are squarely at odds with how we perceive of ourselves as a nation and the values which Americans, by definition, universally embrace. We have watched while this administration imprisoned U.S. citizens on U.S. soil and claimed the right to keep them there indefinitely with no trial, no charges and no access to lawyers; routinely used torture as an interrogation tool; created secret gulags in former Soviet Eastern European prisons in order to detain people beyond the reach of the law or monitoring; and eavesdropped on American citizens, on U.S. soil, without warrants or oversight of any kind in patent violation of a 28-year-old law which makes warrantless eavesdropping on Americans a criminal offense.

Those scandals have received their fair share of attention, but this critical point has not: all of those scandals stem from the fact that we have a president who, expressly and out in the open, claims that he has the power to act in the broadly defined area of national security (which includes measures taken against American citizens on U.S. soil) without any "interference" from anyone--including Congress, the courts, and even the law. In sum, we are radically changing our system of government, and, in the process, have transformed ourselves from a country that, for decades, was widely respected as a restrained and principled superpower into an amoral, highly militaristic and aggressive state which is widely feared and despised.

In other words, he doesn't do garden-variety Bush-bashing; he's doing a systematic unpacking of the worst offenses of the administration.

Yesterday, for example, Glenn pointed us to this Boston Globe article:

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution.

Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Legal scholars say the scope and aggression of Bush's assertions that he can bypass laws represent a concerted effort to expand his power at the expense of Congress, upsetting the balance between the branches of government. The Constitution is clear in assigning to Congress the power to write the laws and to the president a duty ''to take care that the laws be faithfully executed." Bush, however, has repeatedly declared that he does not need to ''execute" a law he believes is unconstitutional.

Former administration officials contend that just because Bush reserves the right to disobey a law does not mean he is not enforcing it: In many cases, he is simply asserting his belief that a certain requirement encroaches on presidential power.

But with the disclosure of Bush's domestic spying program, in which he ignored a law requiring warrants to tap the phones of Americans, many legal specialists say Bush is hardly reluctant to bypass laws he believes he has the constitutional authority to override.

Other presidents have done the same thing, of course, but, as Kevin Drum points out, not to the scale Bush has. Bush--with a Republican Congress passing the laws, mind you--is averaging more per year than Bill Clinton--also with mostly a Republican Congress--did in his entire term. Glenn correctly comments, "That is why the President has never bothered to veto a law--why bother to veto laws when you have the power to violate them at will?"

I know that among my readers, some of the conservatives have already given up on Bush. For those who haven't, though, I really, really wonder how you can hang on with someone who has such an utter and irrefutable disdain for the law. And how 32% of the rest of the country can be there with you.

For the visual learners in class

Credit to Barabara O'Brien, who has encapsulated in a flow chart everything that's wrong with Bush Administration policy.

Glenn Greenwald, writing unrelatedly, provides an explanation in words:

For the last couple of years, the tactic of war proponents was to simply deny reality and pretend that the disaster in Iraq was just fiction, nothing more than the invention of an American-hating media. That little tactic isn’t working any longer. All but the hardest-core Bush loyalists have abandoned this war long ago. And anyone with eyes can see that our Iraqi project is a disaster – at best, it will achieve nothing in exchange for the incalculable costs our country has endured and will have to pay for a long time to come. At worst, it will ensure the opposite of our goals.

Finally forced to accept the reality of their failure, war proponents have only two choices left: (a) admit their error and accept personal responsibility for their horrendous lack of judgment and foresight, or (b) blame others for their failure while insisting, in the face of a tidal wave of evidence, that they were right all along. Guess which option these Shining Beacons of Personal Responsibility are embracing? [. . .]

Those who insisted on this war, who started it, who prosecuted it, who controlled every single facet of its operation – they have no blame at all for the failure of this war. Nope. They were right all along about everything. It all would have worked had war critics just kept their mouths shut. The ones who are to blame are the ones who never believed in this war, who control no aspect of the government, who were unable to influence even a single aspect of the war, who were shunned, mocked and ridiculed, and who have been out of power since the war began. They are the ones to blame. They caused this war to fail.

They make decisions in a bubble, smear anyone who dares to question them, and then blame the powerless for failure of policies. This is fundamental; there is no adminsitration policy--from Medicare D to the Dubai Ports World deal--that does not fit this pattern.