Obama On FISA: Telecom Immunity Issue Doesn't Override National Security
At a presser today, Obama weighed in again on the FISA cave, and suffice it to say that what he said won't make opponents any less unhappy about Obama's position than they were already.
Asked specifically why he's supporting the current FISA bill when he'd promised months ago to support a filibuster of an earlier version of the bill, Obama suggested flat out that "national security" overrides the question of telecom immunity...
It's true that Obama says mitigating things like we need to be "watching the watchers." But here's the key quote from him:
"The bill has changed. So I don't think the security threats have changed, I think the security threats are similar. My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people."
Obama's line on national security here seems to be affirmation of something that many understood already: That he will support the bill even if telecom immunity isn't stripped from it, despite his promise to try to get immunity out of the legislation. If the issue of telecom immunity doesn't override national security, he'll of course vote for the bill with or without it.
Separately, the developing politics of this are interesting. Today Harry Reid announced that he will oppose the bill. Many Democrats are now asking, What will Hillary do?
Tea leaf readers note that Hillary's New York colleague, Chuck Schumer, also announced today that he's voting against it. Will Hillary follow suit? It seems like a huge opening for her to repair relations with progressives angry with her over her treatment of Obama during primary. On the other hand, some Dems note a complicating factor: If Hillary votes against the bill, it could cast a bit of a shadow over the planned "unity" Hillary-Obama event on Friday.
Stay tuned.
Late Update: Video added.
As a lawyer, I've never quite understood why the netroots get so upset about this immunity issue. The phone companies were acting at the request of the national government. If there was harm done in the process of complying with the national government's request, the phone company wouldn't have direct liability--the national government would (this excludes intentional bad acts by the telecoms and other actions outside the government's request). My guess is that AT&T and others only agreed to take action if they were FULLY indemnified by the national government.
The real problem is that the federal government will never, under GWB, agree to be sued on this issue. (And whether that suit would get anywhere is a whole other matter (not sure how a plaintiff would prove harm and thus have standing to sue)). The issue here is Bush. Not the telecommunication companies.
June 25, 2008 6:18 PM | Reply | Permalink
Nailed it.
The important thing is that the Obama Administration can pursue criminal charges against those in the Bush Administration who pushed illegal wiretapping.
June 25, 2008 6:23 PM | Reply | Permalink
Hm, I disagree. That the bad actors of the administration might be prosecuted is an important thing, but it is not the only important thing in this mess. The telecoms knew that they were engaging in something illegal. They should, both as a moral principle and as a matter of good customer service, have done as Qwest did and refused to cooperate. The lawsuits which will be stifled by this bill represent an attempt to make them pay for that failure (and thus create an incentive to do the right thing next time). The law needs to be written in such a way that it works regardless of who is president. To say "well, as long as Pres Obama will be free to pursue criminal charges against Bush's henchmen, all is o.k." is a very short-sighted view. What will happen in 2018 when Pres Jeb Bush follows his brother's illegal lead? Pres Obama will not be able to save us then.
June 25, 2008 6:30 PM | Reply | Permalink
Here we go again.
My take from Greg's "downer" thread last Friday:
I've collaborated with another lawyer on this board, Elizabeth2, to give the reasons why we feel this FISA compromise is not the major crisis some are making it out to be.
The illegal acts involved were actually those of the *government* (Bush administration) not the telecoms, so immunity for the telecoms is simply beside the point. If immunity is defeated and the lawsuits go forward, I’d say there’s about a 90% chance they will be dismissed before there is much opportunity to do discovery, or any chance to probe into the secrets.
Why? Because the telecoms have a very strong defense for THEIR actions: they relied on an apparently lawful order by government officials who had the power to give such an order. In fact, under the law as it existed at the time the gov’t could go to a judge for pre-approval OR direct the records be turned over and then have it retroactively appoved by a judge. So there was no way the telecom could know, at the time they were told to turn over the records, if the order was going to be given approval in the future, even if it didn’t arrive with a warrant. (I believe Qwest was able to make its principled stand - relying on the Nuremburg principles - after it became apparent that the government wasn't getting approval either before or after ... but it's a risky move to make.)
Simple principle: The law does not favor giving private individuals or entities the power to decide on their own what is or isn’t lawful (not until you get to the extreme examples under the Nuremburg doctrine). So if you follow what appears to be a lawful order by your government, then the law protects you. Example: if there’s an accident up ahead and a cop tells you to do something plainly illegal – like drive eastward on the westbound lane – then you’re supposed to do it, not quibble and inquire into his reasons or authority. So if another cop arrests you for doing something that is, in fact, illegal, you have an absolute defense: you were following the orders of someone with apparent authority to give those orders.
So how is allowing citizens to bring probably-losing lawsuits against the telecoms going to prevent the Bush administration, or any other government, from doing just what they did here?
Furthermore, there IS already a remedy, one that takes the case directly to the wrongdoer - the government. 43 USC 1983 [the US Code] is a powerful tool and it makes all of us “private attorneys generals” in enforcing our Constitutional rights. Study some of the civil rights litigation if you doubt its power.
Now it’s true that you won’t get rich even if you win - you probably won’t get enough to pay your attorney unless you can prove specific damages beyond the constitutional violation itself (On the other hand, you won’t get very rich bringing a losing lawsuit against the telecoms either.) But you would get discovery rights, and you would if successful get a declaration that the people actually responsible for this invasion of privacy were acting unconstitutionally.
So why not sue the Bush administration instead of some private third party who has a very solid defense?
I can’t disagree with the fact that probable cause, 4th Amendment etc. are very important and that the Bush administration may have acted as it did to nibble away at such rights or set the precedent that they can be erased in little bits. ------ But we are dealing with people (those currently in power, the young ones on the Supreme Court, and one trying to get into the White House and appoint others to the Supreme Court) who want to go a lot further than chipping away at the implied right to privacy of the 4th Amendment. They want to start right at Article I, ripping away any limitations on the government, even the most honored and ancient.
I’d deal with the FISA situation in a very pragmatic way. Is the bill (the substantive part) better than present law? If yes, work to get it passed; if no, leave it be and concentrate on a battle that will make some real difference. It may well be that the law as it stands is just fine ..... that the real problem is that we’re just dealing with a bunch of hoodlums! ------ Does the bill take away protections that are there in the current law? If not, give it your blessing. If yes, oppose it as much as possible without crippling yourself (time, energy, money, political capital). Because the most important thing is to get the hoodlums out of power. (I don’t know the answer to those questions, by the way - substantive provisions of the proposal vs. current law.) ----- Does the immunity part of the bill really make a difference? Is IT worth the expenditure of that time, energy, money and political capital? I don’t think so. If Obama doesn’t think so either, then he shouldn’t waste time and effort on it, no matter what he said back when this seemed like the biggest threat on the horizon.
If you saw the video of his talk to his Chicago staff after clinching the nomination, you may have been caught at the sense of ...something, not exactly fear but being a bit in awe or overwhelmed ... when he talked about their having to work now, that there’s no other option, it all rests on their shoulders and on his. I bet that heavy responsibility does give you a new kind of vision about which fights are important and which are going to be distractions from the main goal. And, yeah, maybe some of your old promises don’t seem so wise from that vantage point. Think about it – how would you feel if YOU were one solitary person standing between this country and John McCain and the people he would appoint to the Sup. Ct. I suspect it’s pretty damn sobering - and that’s just how Obama looked that day.
No one is having fun because this hornet’s nest has been hit, and it was already clear that immunity was going to be a *big deal* (I'm wondering if it wasn't a big red herring...) So I’m convinced that there was some persuasive reason for their including it. Have no idea what. Maybe the bill itself is an improvement on current law and they feel it’s needed and they couldn’t get the votes without the immunity. ------- Maybe – it’s possible you know – that some felt it is fair to grant retroactive immunity. The telecoms were obeying apparently lawful orders, so should they be sued? There are probably reasonable people who feel that they shouldn’t. Maybe those same people feel that those *giving* the orders should be strung up by their thumbs, but think it’s unfair to make the telecoms the target for everyone’s outrage. ---- Maybe some of them are concerned that because the telecoms will have a very strong, very accepted defense and conclude that a long string of LOSING lawsuits against them would be worse than none at all, would further demoralize people. ---- Maybe they feel like Gerald Ford did, that the important thing is to end this sorry chapter and move forward. Many people who didn’t vote for him because of the pardon later applauded whole-heartedly when he received the Profiles in Courage award for just that act. ---- Maybe they are concerned that all these lawsuits looking into what information was released to whom would just be more invasion of people’s privacy.
I don’t know what the reason(s) were, but there was one, or some. And yes, it would be really nice if they would explain ..... unless there were such a variety of reasons, no explanation would suffice (and would probaly start a brawl). Unless they feel the explanation (“Look, you’d lose every damn one of those lawsuits. It would be futile.”) would be as demoralizing as the invasion of privacy in the first place. I can't praise or condemn the decision to include immunity because I just don't know enough of the relevant facts.
The telecoms didn’t violate our constitutional rights, because only government, not private entities, can do that. The 4th Amendment protects against unreasonable searches and seizures BY THE GOVERNMENT. (If a private party does it, it’s called theft, kidnapping, etc.) If I’m right about this (and civil, specifically governmental, liability is something about which I do know a lot.), then GOVERNMENT violated the law in giving those orders without seeking, before or after, the approval of a judge, but the companies didn’t violate any law by complying with those orders. Those responsible in the Bush Administration should be held accountable criminally, and this FISA bill does not mention or grant immunity, retroactive or not, for any potential criminal actions.
In fact, maybe some of the people who want to grant that immunity want to do it in order to shift attention back to the real wrongdoer: Bush & Co. Don’t sue the companies: they didn’t do anything wrong and you’ll lose. Sue the government in a 1983 action – that’s where the culprit is.
Look, we don’t really care what information was disclosed, and we know what motivated the companies to do the disclosing. What we citizens care about, or should care about, is why, for what reason, the government gave the orders to the telecoms in the first place and what use they made of the information they obtained. It’s the governmental action, not the corporate action, that is the threat and that should be the focus of any inquiry.
June 25, 2008 6:47 PM | Reply | Permalink
I am not buying the dichotomy. The illegal acts were the acts of both the government and the telecoms. Once one does away with your hard and fast bifurcation here, however, the rest of your argument collapses. This FISA "compromise" is bad news and there really is no consolation in the fact that Pres Obama will still be able to bring the bad actors in the administration to justice.
June 25, 2008 6:55 PM | Reply | Permalink
Why not?
There is no criminal immuntity , retroactive or otherwise in the FISA compromise bill, only civil immunity.
June 25, 2008 7:01 PM | Reply | Permalink
and why do YOU want civil immunity?
in all your contortionist efforts to be a good and obedient obama apologist, you consistently fail to actually defend civil immunity.
why don't you trust the judicial branch to do its job?
what are you and obama so afraid of?
June 29, 2008 1:41 PM | Reply | Permalink
No. The acts were those of the government. The telecoms are essentially agents of the government. Just like you are an agent of whoever employs you.
June 25, 2008 7:03 PM | Reply | Permalink
So, if my employer tells me to rape someone, I wouldn't be held accountable?
Sounds weird to me.
June 25, 2008 7:55 PM | Reply | Permalink
We're talking about the 4th Amendment here, not criminal conspiracy to commit rape.
The 4th amendment proscribes governmental infringement of the constituional right.
Your boss, on the other hand is telling you to commit a crime.
June 25, 2008 8:35 PM | Reply | Permalink
We're talking about the 4th Amendment here, not criminal conspiracy to commit rape.
The 4th amendment proscribes governmental infringement of the constituional right.
Your boss, on the other hand is telling you to commit a crime.
This is absurd. The telcos committed a crime -- they violated statutes, separate from the 4th amendment, which doesn't apply to them -- duh.
June 25, 2008 10:37 PM | Reply | Permalink
An explanation in search of a point?
Do you know the difference between civil and criminal vis-a-vis this bill?
June 25, 2008 11:42 PM | Reply | Permalink
If Bush ordered the telecoms to rape people, then, yes, they shouldn't get immunity in any form.
June 25, 2008 8:41 PM | Reply | Permalink
YOU may not be buying a dichotomy, but any normal person would, which is why these lawsuits aren't going anywhere anyway, except into the dumper. It's obvious to a child that when DOJ officials go to a corporation and tell them they need their cooperation to maintain surveillance on suspected terrorists and prevent a potential domestic attack, they are going to comply. There's no judge in the country that wouldn't throw these cases out.
June 26, 2008 8:28 AM | Reply | Permalink
If there is no judge in the country who would not throw them out, then why is the administration fighting tooth and nail for the retroactive immunity? It seems to me that the bad guys in this story are not nearly so confident as you are of the strength of their legal position.
June 26, 2008 10:15 AM | Reply | Permalink
utter nonsense.
and you might have noticed that your argument is actually an argument AGAINST immunity. if there isn't any liability, there isn't any NEED for immunity.
June 29, 2008 1:33 PM | Reply | Permalink
Unfortunately, the scope of the malfeasance is wider than just individual cases brought before the phone companies and all evidence indicates that it involves massive domestic eavesdropping.
June 25, 2008 7:50 PM | Reply | Permalink
I just finished a semester long 1983 course, so wouldn't this be a case where the law isn't clearly established? That is, they'll all get off scott-free but from now on they can't do it?
June 25, 2008 10:16 PM | Reply | Permalink
So if you follow what appears to be a lawful order by your government
It didn't appear to be a lawful order; that's why Qwest refused it.
June 25, 2008 10:31 PM | Reply | Permalink
and discovery would probably reveal that the telecom giants' own lawyers knew that the 'orders' were not lawful.
June 29, 2008 1:45 PM | Reply | Permalink
Ignorance apparently is an excuse for breaking the law ... at least for Telecoms. I wonder what side you would be arguing if Hillary Dillary Dock had said such garbage as "National Security trumps immunity". What kind of nation are we hoping to secure?
Pre 9/11 thinking ... GIVE ME LIBERTY OR GIVE ME DEATH.
Post 9/11 thinking ... TAKE MY LIBERTY I DON'T WANT DEATH.
Thank God those who fought for this nation then are not the simpering cowards wanting to ruin this great nation now.
Meet the new boss same as the old boss.
June 25, 2008 10:32 PM | Reply | Permalink
I'm sorry but the facts get in the way of this thesis. I notice that you (like me) don't practice in the area of telecommunications law or Constitutional law. But,
A couple of points:
1. The Telecoms were not at all worried about obeying the government "order" to cooperate with this spying program. In fact, they cut off the Feds completely when the government fell behind on their payments, just like they turn off your phone when you don't pay your bill.
Clearly, they weren't feeling terribly compelled.
2. Obviously, they must have gotten hold-harmless and indemnity agreements from the Government. It would be malpractice for their attorneys NOT to get such agreements if at all possible. And in this case the government BADLY wanted their cooperation without a lot of hassles or the possibility that all this would become public knowledge.
3. The existence of an indemnity agreement does nothing to vitiate the usefulness of the lawsuits going forward. Money was never any significant part of the point of these suits. First of all, the damages would be trivial to companies like AT&T. It's clearly NOT going to inhibit their behavior going forward.
4. I'm not at all sure that a suit of the government or the responsible officials in the Bush administration would lie. I certainly haven't researched this issue but Plaintiff's lawyers certainly did and they obviously concluded not. Just the impossibility of getting past national security restrictions for one thing must weigh heavily. I'd say offhand they were right.
5. The "Nuremberg Defense" doesn't just apply to "extreme" cases. We aren't Nazi Germany. The government cannot order you to break the law. Legally. There are of course some practical limitations to this, but not for Telecom Giants.
They cooperated NOT because they thought it was legal, their own legal departments must have told them of the order's questionable legality (as Qwests' obviously did), but they went along for what amounted to government bribes (multi-million contracts to make it worth while to them).
Conclusion: There's no reason to think these suits would all be dismissed BEFORE discovery, and it's certainly worth a shot. A governmental indemnity agreement DOES NOT absolve the tortfeasor from wrongful conduct, it merely results in the government being a potentially responsible party and having to indemnify the companies for any award -- which is a trivial aspect of the case.
We WANT TO KNOW WHO WAS SPIED ON! What were they up to? That's all. That's why this is a big deal.
June 25, 2008 10:45 PM | Reply | Permalink
This deserves a post in and of itself. Bravo! You are, without a doubt, the most rational thinker with regards to this damn FISA crap.
June 25, 2008 10:55 PM | Reply | Permalink
If it wasn't clear, I was talking to Buckeye Terrorist Fist Bump Nation.
Great name, by the way. =)
June 26, 2008 12:28 AM | Reply | Permalink
For a second there, I thought you were replying to Cugel who actually did have a very good concise and accurate assessment of the telecom situation (cautious even).
OTOH, fistbump starts with, “The illegal acts involved were actually those of the *government* (Bush administration) not the telecoms, so immunity for the telecoms is simply beside the point.” This is just flat wrong and forms the basis for the rest of his pointless apologia. As Judge Walker indicated the telecoms not only broke the law but had to know they were breaking the law. It seems some are determined to see only what they want to see.
June 26, 2008 12:52 PM | Reply | Permalink
Dude, I told you the same thing 3 days ago...maybe it was because I said it...that's why it wasn't as "brilliant" at the time.
June 26, 2008 9:05 AM | Reply | Permalink
Unfortunately, if we sue the government, they quickly apply the STATE SECRETS ACT. This is about blocking any discovery from happening. Read Charlie Savage's book Takeover, for examples in which time after time, case after case, the Bush administration stifles discovery.
Also, keep in mind that this bill does a lot more than just immunity. It 'legalizes' what we THINK the Bush administration did in regards to wiretapping (no one knows for sure). This is a travesty.
It also changes the DEFINITION OF WMD and expands it to cover a much wider rage of weapons including explosives.
This is a scary bill. Anyone who supports this legislation is in obvious need of real patriotism 101.
June 26, 2008 12:49 AM | Reply | Permalink
Buckeye: The FISA law requires a court filing for each individual person to be spied on. Copying all telephone, email and internet traffic for everyone in the United States over to a secret government computer is not something the FISA court would have been able to authorize, 3 days later or not. The phone companies had to know this.
Your traffic-cop analogy is a poor one because by law you must defer to the instructions of a police officer in a traffic situation. The law does NOT state that everyone must do whatever the president asks, regardless of other laws. (And the law recognizes no "special moments" like if some Americans just got tragically killed.)
In fact, we are a nation of laws, not men. The traffic cop would be fired and worse were he to abuse his authority in the situation you describe. The same would hopefully be true for the president, and I agree that crimes were committed by members of the current administration. But the telecom companies also committed serious crimes by agreeing to do this without a court order - it takes a lengthy, convoluted and specious argument such as yours to suggest otherwise.
I don't think this is hyperventilating at all. I see it as a bad, bad development; another huge step toward totalitarianism. Maybe time will prove me wrong. God, I hope so.
June 26, 2008 3:01 AM | Reply | Permalink
You are telling me that there is no provision for acting in a time of war?
June 26, 2008 1:37 PM | Reply | Permalink
Well, then, why doesn't Obama explain it that way instead of using the old "national security trumps civil rights" canard? I thought Obama was going to talk to us like adults.
June 26, 2008 6:27 AM | Reply | Permalink
Yes, the government violated the 4th amendment and only the government can do that.
But the telecoms violated the 1984 Telecom Act and other privacy laws. So they should be on the hook as well and their victims deserve a hearing in court without congressional interference.
June 26, 2008 7:55 AM | Reply | Permalink
This is a smart post, and it makes me rethink my position to a certain extent, but it must be pointed out that you are making a gigantic assumption here. You say that the phone companies are supposed to comply with requests for info from the government, because FISA includes an emergency provision that allows the government to begin surveillance first and then get the warrant afterward.
If we are in fact talking about discrete acts of surveillance, you are entirely correct (although you would think the phone companies would eventually point out that the warrant-free time period had been over for, like, three years...). BUT, there is at least the possibility (and certainly the assumption of many is) that we're actually dealing with something on the order of systematic data mining, or at the very least requests on a scale that could not possibly fit the model of the emergency warrantless request but instead fit the model of fishing/sifting for information. If that's what happened, a good lawyer should be able to win a lawsuit against the phone companies.
It would be nice to know the scale of the infractions before we make these decisions. If the full House and Senate Intelligence Committees have been given this information and signed off on the bill in part because of it, I'd be happier than I would otherwise.
July 1, 2008 3:18 PM | Reply | Permalink
Amen.
June 25, 2008 7:05 PM | Reply | Permalink
Greatest. Handle. Ever.
June 25, 2008 8:05 PM | Reply | Permalink
It's so much better than the simple "Buckeye Nation" or "NCSteve."
Thanks!
June 25, 2008 8:38 PM | Reply | Permalink
Drink up!
In order to keep foolin yourself you're gonna need all the Kool Aid you can get your hands on!
You... and millions of others have been bamboozled. He's no different than the rest and he just sold your 4th amendment rights down the river yet you still will make excuses. So again, drink up and enjoy the buzz while you can cause when the hangover of reality hits you, you're gonna be bummin big time.
June 25, 2008 10:41 PM | Reply | Permalink
have you read the legislation?
June 26, 2008 1:52 PM | Reply | Permalink
Yes, and and with immunity, the telecoms will more easily testify against those in the regime who strong armed them.
June 26, 2008 12:58 AM | Reply | Permalink
Yes, and and with immunity, the telecoms will more easily testify against those in the regime who strong armed them.
(this is in reply to Buckeye Terrorist Fist Bump Nation, which for some reason, showed up elsewhere)
June 26, 2008 1:02 AM | Reply | Permalink
The problem is not really with the telecoms. It's with Bush. But the only way to force out the truth about Bush's crimes is through lawsuits against the telecoms. Why do you think Bush has been so firm in demanding the immunity?
June 25, 2008 6:24 PM | Reply | Permalink
The problem is not Bush. The problem is that Bush and the Republicans are the only people in Washington with any balls and they know it. If we had a Congress with any balls at all we wouldn't be experiencing this disgraceful capitulation. But they don't have any balls. We now also have learned beyond any doubt at all, sadly, Obama has no balls either!
June 25, 2008 10:44 PM | Reply | Permalink
I've heard Hillary has 3. Could she spare one ys' think?
June 26, 2008 10:01 AM | Reply | Permalink
Immunity will prevent discovery. That's the issue.
June 25, 2008 6:24 PM | Reply | Permalink
Immunity is immunity. There is no suit. I get that. I'm saying that the issue here is not with the telecoms. It is with the federal government.
And again, with no proof of harm, no one has standing to sue them (telecoms or the federal government). This isn't a normal case where the court would give you leeway to develop a case. This is a national security matter. You'd have to have proof of harm to get past summary judgment. I just don't see any individual having that evidence.
June 25, 2008 6:29 PM | Reply | Permalink
It's not a national security matter at all.
If Bush instructed a bunch of thugs to pull a bank heist, the fact that he planned to use the loot to help catch terrorists would be irrelevant.
June 25, 2008 6:35 PM | Reply | Permalink
You are oversimplifying this matter. First, if Bush ordered someone to rob a bank, it wouldn't be a federal matter, it would be a state matter (there are no federal criminal statutes). Second, here there is no specific law that was alleged to be broken. What most of us "know" is mainly heresay or speculation at this point. We don't know what the telecoms did or were asked to do, so your analogy may make more sense with more information, but at present it does not.
June 25, 2008 6:43 PM | Reply | Permalink
If there were no federal criminal statutes, there would be no federal prisons, so I'm guessing you didn't mean it the way you wrote it.
Bank robbery is a crime governed exclusively by federal law, I believe.
I'm sure you meant something different, but I couldn't let it pass.
June 25, 2008 6:54 PM | Reply | Permalink
There is no federal criminal code. Feel free to check the USC. There are criminal penalties for certain actions (like running afoul of the FEC--yes, I'm looking at you John McCain), but there is no federal burglary statute.
June 25, 2008 7:01 PM | Reply | Permalink
I'm no lawyer, but I know bank robbery is not burglary. Robbing a FDIC insured bank, which is most of them, is a federal offense, which is why the FBI investigates these robberies.
June 25, 2008 8:30 PM | Reply | Permalink
Title 18 and Title 21. I'm not making this up.
June 26, 2008 10:38 AM | Reply | Permalink
Are you sure your an attorney? Didn't you study the Commerce Clause cases in Con law?
June 26, 2008 12:04 PM | Reply | Permalink
Yes, of course I'm oversimplifying. It's an analogy.
The fact remains that fighting terrorism is not a valid excuse for breaking the law.
June 25, 2008 7:08 PM | Reply | Permalink
I should have added 'ostensibly.' The fact remains that ostensibly fighting terrorism...
Ooh, I'm going over to see what Greenwald has to say about this. He has been stellar on this issue.
June 25, 2008 7:10 PM | Reply | Permalink
Hm, maybe you are right, I would not pretend to know what a judge is or is not likely to do in this case. That said, the fact that the administration was so insistent about retro-active immunity for the telecoms suggests to me that they were not nearly so confident as yourself that the case would not make it past summary judgment.
June 25, 2008 6:35 PM | Reply | Permalink
If their phones were tapped illegally with the complicity of the telecoms, that's sufficient harm for a cause of action. I'm pretty sure that particular hurdle has already been cleared. A suit against the government (or criminal prosecution after January) is a lot harder. That's why the telecom suits offer the best chance of getting at the truth, and it's why Bush is fighting tooth and nail to prevent it.
June 25, 2008 6:36 PM | Reply | Permalink
This to me is where the REAL fight is. But we really don't know what happened at this point. Was it a true tap or was it data mining? Did they use a computer program (and thus no humans were involved) to filter the information? Were they simply targeted searches? Without knowing precisely what occurred, it is damn near impossible to determine that harm has occurred. If anyone has any more information on what the program entails, that would be helpful.
And I think you are right, Bush is pushing for immunity to foreclose any avenue under the current administration to seek compensation.
June 25, 2008 6:49 PM | Reply | Permalink
Really ... no proof of harm? When the Constitution is crapped upon, ALL AMERICANS ARE HARMED. They clearly crapped upon the Constitution. I've been harmed.
June 25, 2008 10:35 PM | Reply | Permalink
Agreed the feds will never agreed to be sued on this sissue and that is why telco liability is needed. Subjecting telcos to immunigty (a thirty year law) is the best way to try to insure that Americans' e-mail and phone traffic is not subject to wholesale warrantless government gathering or you can trsut good mother government to behave like the worthless whimp that is Obama.
June 25, 2008 6:36 PM | Reply | Permalink
Subjecting telcos to liablity ....
June 25, 2008 6:38 PM | Reply | Permalink
As a lawyer, I suppose you better than most, can understand the fallacy of arguing that because you were asked by someone to break the law that it somehow absolves you of the consequences. This establishes a dangerous precedent- that in the future, an action requested by the executive branch, no matter how patently unlawful it may be- can be excused.
Were there to be no immunity for the telecoms, it would certainly hurt them. I don't think anybody is going to argue that. It would, however, send the message that laws are not meant to be ignored when inconvenient.
June 25, 2008 6:40 PM | Reply | Permalink
You are drawing the conclusion that the telecoms were breaking the law. Neither you nor I know that to be the case, and only a court could determine it. Which leads us BACK to the issue at hand, this is a national security matter. The court isn't going to open this up for discovery to satisfy our collective cynicism about the nature of this program.
If what they did was blatant on its face illegality (e.g., committing murder) that's one thing. But it is far from clear that it is that cut and dry.
And the larger point I was making is that the telecoms are no different than you as an employ. If your company dumps waste products, do you think you should be held personally liable because you worked on the assembly line that created the waste products? I don't want to minimize the telecoms role here, but I haven't seen that they were the mastermind of this operation. From all indications they were approached by the government with the program and their GC's decided to move forward. The real culprits are GWB and his administration. I'd focus my attention on them.
June 25, 2008 6:57 PM | Reply | Permalink
----
You are drawing the conclusion that the telecoms were breaking the law. Neither you nor I know that to be the case...
----
Well said. I guess there's no reason to grant immunity to the telecoms then.
- FTF
June 25, 2008 7:25 PM | Reply | Permalink
Totally agree with your point.
June 25, 2008 7:31 PM | Reply | Permalink
Boy, that sure would be news to the federal judge who's actually trying the case that Obama (et al) are in the midst of nullifying.
Per Judge Vaughn Walker (appointee of Bush 41):"AT&T cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal."
link: http://eff.org/files/filenode/att/308_order_on_mtns_to_dismiss.pdf
But what does that guy know? He's only the federal judge actually trying the case.
Patrick Meighan
Culver City, CA
June 25, 2008 7:44 PM | Reply | Permalink
Thanks for forwarding this. Didn't know about this (and it certainly may impact my view of things).
June 25, 2008 7:52 PM | Reply | Permalink
It is a foregone conclusion. If it was really so unclear whether what they had done was illegal, it would not be the huge issue that it is. And there's plenty of documentation out there about the illegality of it under current statutes. On top of that, you can bet your ass that the telecoms had their entire team of lawyers look at it and determine that what they were doing was against the law, and that they went ahead with it in the face of that.
Answer to your question: No. Applicability to this situation: None.
If I worked for a company that dumped waste products and was ASKED to dump waste products, I would say no. This is pretty classic job interview crap here, you know- "what if your boss asked you to do something illegal" and I think we all know what the expected answer to that question is. Well, unless you work(ed) for Enron. Or AT&T, for that matter.
Hell, I can give you an even more applicable answer. I worked for a company where the owners decided they wanted to read people's email. They wanted to see all of the employees' work email, and here's the kicker- any personal email that was sent or received while using company computers. I flat out refused to do any of it, because I did not agree with it. Ultimately they scrapped the idea, but I would have given up my job over it... it was pretty crappy anyway. But that's my stand on issues that I feel strongly about.
June 25, 2008 8:42 PM | Reply | Permalink
And guys, I hate to get technical here, but technical matters. Saying stuff like "so if you ask me to rob a bank and I help you, under your theory I'm not guilty" isn't advancing your argument because violating someone's Constitutional rights isn't a crime. I know it's a hard concept to get your heads around. And I'm not being sarcastic. I know it is. A lot of people think that if an illegal immigrant is illegal, that must mean he's committing a crime by being here. Not true. No criminal statute. He can be deported because he's no a citizen, but you can't throw him in jail just for being here illegally.
"Crime" is an act, usually accompanied by a particular state of mind, that is punishable by the state by death, imprisonment, corporal punishment (back when that was allowed) or fine levied against the criminal by the state. All federal crimes, and most state crimes in most states, are purely creations of the legislature. No statute defining the act as a crime and specifying a penalty, no crime. There is no federal statute making the violation of someone's constitutional rights a crime.
Additionally, as the man said, only governments can violate constitutional rights. I can tell you to STFU and I'm not violating your Constitutional rights. Instead, I'm just some annoying a-hole who's up in your face. If a cop tells you to do it while on duty, or if he flashes a badge at you off duty, he's potentially violating your First Amendment right to free speech.
Constitutional rights are, for the most part, vindicated by orders from courts telling the state actor to cut it the hell out and by statutes that give people whose Constitutional rights have been violated the right to file civil actions against government officials. In some cases you can get money damages, in some cases you can get an order from the court that makes the government fix or undo what its done and in most cases you can get one of those orders telling the government to cut it the hell out. And, in the case of Fourth Amendment rights, the government can lose the right to use information gathered in violation of your Fourth and Sixth Amendment rights against you in court, which can result in a perp walking.
But there's no federal statute that says anyone who violates your right to be free from unreasonable search and seizure has committed a crime (though, depending on what they did, they could have, e.g., committed misdemeanor theft under state law if they actually took your property.)
So, back to my example. If a cop tells a protester peaceably speaking against the war to STFU or he'll run him in, the cop has violated the protester's right of free speech. If the protester sues, the cop can be ordered to stop doing that and he may even be liable to the protester for civil damages or attorney fees. If no violence or threat of violence is involved, however, that cop has not committed a crime. If a cop tells a bystander to go tell the protester to STFU, the bystander becomes an agent of the government for purposes of determining whether the cop is liable for damages for violating the protester's First Amendment rights, but neither the bystander nor the cop have committed a crime. Moreover, as long as the bystander didn't smack the protester around or get in his face or use foul language, or committed some other state law tort, the bystander is not even civilly liable.
(There is an exception to all of this; engaging in, or conspiring to engage in violence or intimidation to prevent someone from enjoying or practicing a constitutional right is a crime. It's how Ku-Kluxers got prosecuted in the bad old days when all white state juries acquited or grand juries returned no-bills.)
So that analogy doesn't work.
Personally, I think its wrong, profoundly offensive and destructive to the health of the polity for rich and powerful corporations to be allowed to buy themselves an immunity statute from Congress. I am also really frustrated by my inability to find out more than speculation about what the hell's really going on and why this bill is necessary.
But getting all overheated about criminals being let loose is all heat and no light.
June 25, 2008 8:58 PM | Reply | Permalink
And guys, I hate to get technical here, but technical matters. Saying stuff like "so if you ask me to rob a bank and I help you, under your theory I'm not guilty" isn't advancing your argument because violating someone's Constitutional rights isn't a crime. I know it's a hard concept to get your heads around.
There's a lot of ignorant blather here from incredibly arrogant people pretending to know things they don't. The above nonsense is neither "technical" nor correct; violating someone's civil rights under color of law (a technical term) is most certainly a crime. And talk of aliens illegally in the U.S. is irrelevant.
June 25, 2008 10:51 PM | Reply | Permalink
As a lawyer, you must know, then, that the only way the government could indemnify the telecoms at the time would have been to PROVIDE A WARRANT.
That's the issue. Telecoms were paid a large amount of money to implement these surveillance systems. They did so without being compelled to do so by a warrant. They violated their customer's privacy and gave their data away simply by receiving a letter from the President and a promise to make a lot of money.
Qwest responded to the Executive's request by asking for a warrant. The Executive didn't bother getting one.
The "netroots" get up in arms because American citizens' rights were trampled on.
Secondly, I for one would happily indemnify the telecoms if the trials were allowed to proceed. The issue is not making the telecoms pay. The issue is that these trials are the only way to find out what was done. If they want to transfer liability to the Feds, fine by me.
The president can't pardon the telecoms for civil penalties, btw. These are civil trials, not criminal trials. I sincerely doubt the justice department is even pursuing an investigation, considering it does whatever the Executive wants at this point.
June 25, 2008 7:12 PM | Reply | Permalink
Apparently you aren't familiar with the USA PATRIOT ACT.
June 25, 2008 7:15 PM | Reply | Permalink
Publicola, I agree with you. Thanks.
We're in the minority here, so I'll take my share of the tomatos . . .
June 25, 2008 7:16 PM | Reply | Permalink
There have been strong indications, and it's been clearly alleged, that the Bush administration asked for these wiretaps before 9/11. Thus, the USA PATRIOT Act does not apply.
June 25, 2008 8:58 PM | Reply | Permalink
Dude, lawyer also. Here is the issue. Under the statute the telecoms get immunity if the government provides a warrant. Very, very low standard, especially with the rulings from the supremes over the last few years. I could get a warrant on my neighbor based on what my cousin's, wife's, friend's, neighbor's cousin allegedly said. Get the point. Very easy, especially with the rubber stamp fisa court, that rarely denies a warrant. The telecoms with their army of smart lawyers didn't require the government to get a warrant. Too bad, they lose. They can argue good faith, bad faith, no faith all day long. It really doesn't matter. Also, the real issue is that they and the nazi administration doesn't want to comply with discovery. That's the issue, not immunity or damages.
That all being said, this issue really is a non-issue at this point. Obama is tacking to the right big time to get elected. Bottom line, we need obama elected and to investigate what the f*ck has been going on the last 7 years. I really don't care about immunity and the low information voter won't either. It will come down to who is "harder" on the "terrorists."
Let's just let it alone and let it be. There are bigger issues.
June 25, 2008 8:34 PM | Reply | Permalink
Thank you for saying that. We need to argue about this AFTER November.
Obama is making a political judgment. If we honestly think he is always going to choose the side of sunshine and daisies to get elected, we are kidding ourselves.
And trust me, I am all about the sunshine and daisies.
June 26, 2008 10:41 AM | Reply | Permalink
i agree the idea is to come up with a comprehensive bill. the fisa bill before had nothing to do with the constitution and now the fisa bill does. you dont get things done in congress by doing everything at once, you have to take it one provision at a time. thats why they say things take long to get done in congress
http://sensico.wordpress.com/2008/06/25/mccain-meeting-with-gay-republicans/
June 25, 2008 9:58 PM | Reply | Permalink
As a lawyer
Being a lawyer does not obviate the need to be familiar with the relevant facts, issues, and arguments. As you note below, "Didn't know about this (and it certainly may impact my view of things)" -- that is hardly all you do not know.
I've never quite understood why the netroots get so upset about this immunity issue.
Never quite understanding why someone holds the position they do is a common consequence of being unfamiliar with the facts of the case and their arguments. The reasons have been explained in depth and at length, notably by Glenn Greenwald -- who is a lawyer, so you might even deign to care about his view.
June 25, 2008 10:28 PM | Reply | Permalink
And the truth has set me free. If you believe in the rule of law, you prosecute law breakers. If you believe in the rule of men, well, when the President does it, that means it's not illegal.
To think I had the audacity to hope that Obama would practice what Obama preaches.
Meet the new boss, same as the old boss.
June 25, 2008 10:28 PM | Reply | Permalink
Publicola: "National Government" is not an entity that can do anything. There are three distinct and separate branches under our system of government, and the Executive Branch (in which the President works) does not have the authority to authorize anyone to commit crimes. I can't imagine what you could possibly mean by suggesting that something called the "National Government" was able to "FULLY indemnify" anyone from prosecution for any crime at all.
June 26, 2008 2:41 AM | Reply | Permalink
The issue with retroactive immunity for telecoms is not about whether they are liable or not--only a court can determine that, not Congress, as both Feingold and Dodd have been careful to insist. The issue is whether their actions, which are agreed by all parties to be illegal under existing law, can be the subject of a law suit. (That their actions were illegal is uncontroversial because retroactive legal immunity would be pointless if it did not covered already existing violations). And so far as I can see, the only way to even assess that question is to have them present evidence in court. If they have truly done nothing wrong, they should be able to demonstrate this in a court of law. That is how democracy works, not magical exemptions that preclude the presentation of evidence in advance for what are, uncontroversially, violations of de facto existing law.
An analogous argument to the one you're making would be a solder in a battle zone: just as his government commands him to kill, so telecom companies were instructed to aid in wiretapping. In both cases, a government command is at issue but is constrained by relevant norms. Just as there are laws even in war, about the things a solider cannot do, so there are laws about wiretapping--regardless of what the government commands. Soldiers cannot, for instance, harm innocent civilians, who pose no threat--and can be punished for doing so, even if they were commanded to do so. Likewise, telecom companies cannot simply wiretap anyone they want to, even if the government tells them to. Under the original FISA law, they can wiretap if and only if a warrant is presented by the government which demonstrates probable cause.
June 26, 2008 5:52 AM | Reply | Permalink
Publicola,
I'm certainly not a lawyer, but I feel quite comfortable that I understand the basics. We live in a nation governed by laws, not the whim of unchecked rulers. Just because a person of authority asks you to do something illegal does not give you a free pass. If that were the case, then the soldiers guilty of torturing detainees would not be culpable for their crimes because the direction of these acts originated in the White House.
This is of course wrong. Even though the policy was set in the White House, these soldiers broke the law and they should be held accountable, in addition to the offending personnel in the White House.
To say that the White House can indemnify a person from legal action for breaking the law is to say that the White House may decide whether or not laws should be obeyed, and who should be subject to them. This belief is, of course, wrong, wrong, wrong.
June 26, 2008 7:35 AM | Reply | Permalink
Ever notice that telecomm immunity is the only issue that "progressives" ever talk about? It is certanly a gross affront to constiutional governance and statutory responsibilities, but it is past. The greater wrong lies with Bush and the 911 war of terror that it unleashed, and it is time we put an end to it. There are other problems with the Bush administration's abuse of the law, not the least of which is that it be allowed to continue to serve as a bludgeon in the hands of the GOP.
Dianne Feinstein's letter follows and it puts the matter into perspective. The bill is an improvement in other respects and lays the groundwork for future corrective amendments.
Telecomm immunity is a small price to pay for putting paid to the larger political and constitutional peril
June 26, 2008 9:44 PM | Reply | Permalink
Why are you equating a possible Hillary vote against the FISA bill to "shadowing" unity? Dodd, who is a major Obama supporter, is voting against this bill, but I don't hear anyone talking about how Dodd's vote would put a rift between him and Obama.
I think it's time to stop viewing through the lens of Hillary's actions affecting the Obama campaign, especially for reporters like you, Greg.
June 25, 2008 6:19 PM | Reply | Permalink
you misunderstood, seriously. here's the crux. opponents of the bill are hoping Hillary comes out against it. so they are guessing at what she does, and one thing they think is weighing on her is that a vote against it could overshadow the unity event.
so here the issue is not how this affects obama, but how it affects her fisa vote.
June 25, 2008 6:27 PM | Reply | Permalink
So she might vote against it to repair relations with progressives. Or she might vote for it to avoid overshadowing the unity event.
Greg, you've put into a nutshell why I never liked Hillary Clinton.
June 25, 2008 6:32 PM | Reply | Permalink
So Mr. Dog,
What you want her to do? Whichever way she votes, you will not like it. I guess she should vote "present".
June 25, 2008 7:10 PM | Reply | Permalink
Ummm...how about voting based on what's right, irrespective of how it affects your political future?
June 26, 2008 9:58 AM | Reply | Permalink
The video provides some much needed context that is brushed away rather dismissively in your post. Just my 2 cents.
June 25, 2008 6:33 PM | Reply | Permalink
I noted that he said mitigating things. But the bottom line is, the full vid doesn't change the meaning of the key quote. He says that the issue of telecom immunity doesn't override our national security. I take this to mean that for national security reasons, we have to support this, and that whether or not there's immunity in the bill is a secondary question.
Is that a fair reading of his quote?
June 25, 2008 6:37 PM | Reply | Permalink
It was the dismissive tone with which you noted them. His reasoning is pretty sound and the statement he makes toward then end of the clip is rather important to the overall statement. But you do have editorial discretion on this matter. Thanks for responding.
June 25, 2008 7:05 PM | Reply | Permalink
I agree with you. And I don't agree with Obama, that the security of the American people overrides the illegality done here. How has this made us more secure? Can anyone site an instance, a case, and on the flip side, how can we be sure we are not more insecure, with data being handed out to god knows who.
I feel Obama is totally wrong in his stance here, the violations of the telecoms need to be addressed, even if they are fined $1. And more important, Bush & Co. need to be criminally charged.
June 25, 2008 10:00 PM | Reply | Permalink
I think that there is a certain urgency to get the FISA mess fixed so our intelligence agencies can do their job properly and within the law. And I think his point was that the immunity issue is important and it should be addressed. But the deliberative aspect of that should not put the country at risk.
June 25, 2008 10:28 PM | Reply | Permalink
Greg,
You're being reallynice to Obama. He didn't say any mitigating things. He offered up the same weak excuses Democratic wimps always offer up when they are defeated and captiulating to Republican demands. Nothing Obama said is even close to an excuse for his disgraceful prostitution of himself. He can wrap himself up in "national security" all he wants he still sold out the country and the millions who were hoping he wasn't just another career politician. Well, he is and that's all he is. Worse yet, he's a career DLC style politician.
June 25, 2008 10:48 PM | Reply | Permalink
Greg, are you married to a clinton relative? Or, are you on their payroll? Come on, inquiring minds want to know. Other than that, we really don't care what the clintons do at this point, they are yesterday's news or almost last month's news. Even if she jumped up and down and joined the fillabuster it still wouldn't take away from her vote to kill hundreds of thousands of iraqis and thousands of americans. Sorry.
June 25, 2008 8:38 PM | Reply | Permalink
Yeah, I'm wondering if Greg will view every piece of Senate legislation through the Clinton lens. What if they vote differently on S.678-Airline passenger bill of rights? Wow, now that will be some controversy up in the unfriendly skies! And what about S.294-Amtrak Reauthorization, FY2007-FY2012? All aboard as Greg lays out what all this means for Clinton's VP chances!
Yeesh...
June 25, 2008 6:39 PM | Reply | Permalink
this is silly. the issue here is not whether this matters to Hillary. It's whether she will support the legislation. opponents of the bill care about this very much. I'm simply laying out the reasons why she might go one way or the other. the bill is my paramount concern here.
June 25, 2008 6:41 PM | Reply | Permalink
Who cares? Is larry craig going to support the legislation? Should we be worried about him? This is silly.
June 25, 2008 8:41 PM | Reply | Permalink
I agree.
June 25, 2008 11:48 PM | Reply | Permalink
nonsense.
clinton doesn't just go from being one of the two most important dems in the country to the bottom of the bucket just because obama is now the presumptive and uncontested nominee.
pretending that she doesn't have any power or influence in the party doesn't make it so. this sort of arrogance among obama supporters reminds me of bush's claim to have received a mandate after squeaking by in one of the closest elections ever. it would be wise to continue keeping in mind that nearly half of dem primary voters supported clinton. obama won, but what clinton does between now and november can certainly have an impact on a lot of dem voters. (particularly as obama tacks back to the right after hornswoggling so many progressives.)
June 29, 2008 2:21 PM | Reply | Permalink
There's still time to nominate Dodd...
June 25, 2008 6:50 PM | Reply | Permalink
Too late, he endorsed Obama, and this FISA bill will do nothing to change that.
June 25, 2008 8:43 PM | Reply | Permalink
Or anyone loyal to the Constitution. Of course you won't find many members of Congress who fit that bill...
June 25, 2008 10:56 PM | Reply | Permalink
Oh Please.
June 25, 2008 11:44 PM | Reply | Permalink
The basic problem is that there are enough Blue Dogs that, when combined with the Republicans, make enough votes to get this bill passed. As unhappy as I am with it, it's better than the original. Sometimes half a loaf is the best you can do. It sucks, but that's politics.
June 25, 2008 6:20 PM | Reply | Permalink
That's the conventional wisdom, and yet the past several times it's come up, there's been a public and editorial outcry, and it hasn't passed. That makes me not inclined to trust the conventional wisdom this time, especially when it's telling us to give up and let the grownups do what they think is best, rather than fight for what we believe in.
June 25, 2008 6:48 PM | Reply | Permalink
If he votes with the blue dogs I must assume he is going to represent them as President. He's choosing.
June 25, 2008 7:17 PM | Reply | Permalink
So Obama is saying Dodd, Feingold, and the rest are voting against the security interests of the country?! Way to go Barack! (And I write this as a staunch, but on this issue severely disappointed, supporter.)
Obama previously vowed to support a filibuster of "ANY" bill that included telecom immunity. There is no way to construe this as anything other than Barack going back on his word now that he has won the nomination. That is what I would have expected from Hillary, not Obama!
June 25, 2008 6:23 PM | Reply | Permalink
Not only that, he's bolstering the idea that we need to enact radical (even for Republicans) schemes of dubious Constitutionality in order to save ourselves from The Terrorists.
That is why I feel so betrayed.
That mindset is precisely why I hate George W. Bush. Actually, I don't think Bush and Cheney even believe that crap - it's a power grab on their part, pure and simple.
Obama's showing himself to be a maroon, a pigeon. This latest news confirms it - he actually buys what Dick Cheney is selling.
June 25, 2008 6:51 PM | Reply | Permalink
...and now he's trying to sell it to us.
June 25, 2008 6:53 PM | Reply | Permalink
I really think you are missing the point of what he is saying here. He's saying that if compared to protecting Americans and ensuring that proper safeguards are in place, giving up the ability to sue the telecoms isn't as important. Would you rather have the ability to sue the telecoms (with very little if any chance of actually getting to court) or ensure that the program had sufficient safeguards going forward? I mean, if you had to choose....
June 25, 2008 7:13 PM | Reply | Permalink
But that's the whole question: why do we have to choose? We have a law in place governing this stuff right now. Even if we posit that the other aspects of this bill are desirable, why do we need to pass this bill right now, unamended, rather than a better bill later? It makes no sense, and defending it reeks of the Republican "pass it today or the terrorists will kill us all tomorrow" logic that we've all grown to hate so much.
Plus, the other aspects of the bill -- which Obama argues make the telecom thing worth leaving in -- are also terrible. And arguing that the federal government needs even more power and less oversight in its spying activities is disgustingly Bushist (to coin a term).
June 25, 2008 8:24 PM | Reply | Permalink
Ard:
Precisely.
If our next Democratic president doesn't mind serving us this slop, we are screwed.
Slightly less screwed than we would be under McCain, but still screwed.
June 25, 2008 8:32 PM | Reply | Permalink
Publiccola, none of your posts make any sense.
i think you are logically impaired or you don't have a grasp on the basic facts of this. i see you rushing out to be an apologist, and making very specious arguments. you are likely on the staff of Obama, or a lobbyist in my reading. I encourage others to be able to see issues clearly, not through the lens of "hero worship" of W-esqueness, where Obama can do no wrong. Clearly he has fucked all citizens of this country. He is participating in a travesty, and as a constitutional lawyer, he understands this as fully as I do, yet he is compromising his core beliefs in American's most sacred rights, or he is just like the Republicans. You just can't have it any other way here...
pick one: compromising his beliefs in the constitutional rights which he took an oath to protect, or he is just like Republicans (not taking that oath seriously)
Public, you talk about ensuring "sufficient safeguards" yet this bill does nothing for that. But you don't know that.... in too much of a rush to post many defenses.
I think you have missed the point of the whole issue, because you may not be clear on what happened.
here it is real simple for you:
1. Before 9/11 the gov't asked telecos to spy on Americans without the warrants that FISA - the relevant law required.
2. Before 9/11 Qwest said no. They are the only company known to have refused the request, they asked for a warrant - like they are required to under the law. Gov't never bothered to give them one.
3. Whistle blower in SanFran said that AT&T set up a secret NSA room with a splitter copying ALL data from phone, and internet communications going through AT&T's network. This includes every keystroke you type on the internet, all your websites, all your emails, all your credit card info, ebay passwords, etc, etc. Also the audio of every call every customer from the 16 companies whose lines went through this one hub in SanFran.
4. Gov't program involved similar "hubs" across the country in multiple locations.
5. 40 lawsuits are in progress following these revelations of lawbreaking.
6. Four judges have ruled on this "warrantless surveillance program" and all have ruled it was illegal.
7. Lobbyists for the telecoms who broke the law met in secret with the members of our congress to write a law giving them retroactive immunity for their lawbreaking. Opponents of immunity, and representatives of citizen's rights like the ACLU were not in these secret meetings.
8. The telecom industry has contributed only thousands of dollars to politicians from all parties.
9. Our representatives are going to pass a law to immunize corporations, and cover up the entire event. The corporations that broke the law to SPY ON ALL OF US has basically paid money to our politicians, and bought a law to say it was "OK" for them to break the law.
10. This immunity has no constituency except for corporations.
11. Not only does this bill contain the egregious immunity, but it also relaxes standards for spying under FISA, the same FISA court under which only 5 of 18.000 warrants had been rejected.
so you can continue to obfuscate, but it this is all really transparent lawlessness and bribery.
you need to read the judge's opinions, they are cut and dry - "ILLEGAL"
period.
it has come at the costs of our core civil liberties, but you couldn't care less
your attitude, along with the actions of our government, including Obama is treasonous
i want to citizens arrest all these fuckers
June 26, 2008 4:00 PM | Reply | Permalink
"That mindset is precisely why I hate George W. Bush."
Amen.
June 25, 2008 7:31 PM | Reply | Permalink
I think we all need to sit back and pause. People who live in glass houses should not throw stones. Many people who cry foul when those on the religious right say they won't vote for a pro-choice person, we say well you can't judge someone based on on issue. What are we doing here. The thing is that regardless if he votes no, the republicans will eat him alive and say that he is weak on terror- it is okay for reid and all the others to say no, because they are not running for president. When most of the democrats knew they would be up for reelections they vote to authorize the war, because they didn't want to be castigated as soft on terror. Yeah, it is a political thing and he should know better because he is a constitutional lawyer, blah blah- BUT, for him to say no, the bill to be passed, and ads saying he didn't have the american interest at heart- it really achieves NOTHING. SO YES OR NO on the bill- I move on and will continue to support
June 25, 2008 6:32 PM | Reply | Permalink
Excellent analysis, gradstudent..I agree
June 25, 2008 6:58 PM | Reply | Permalink
There is a pragmatic side to this, I would agree. But put this next to his reversal on campaign finance, his fundraising through lobbyists, his support for coal and ethanol interests, his softening stance on NAFTA, his opposition to progressive Democrats in primaries (Lamont, Cegalis, Barrow's opponent)--when does pragmatism begin to undermine principle?
June 25, 2008 7:07 PM | Reply | Permalink
In Barack's case, a long time ago, unfortunately. This is why it is so important to elect truly progressive legislators who will hold Barack's feet to the fire. It is clear he will gladly take the easy way out if not pressured to do the right thing.
I write this as a supporter, just one with no illusions: I was one of the people on the ground campaigning for Cegelis when Rahm Emanuel and Barack -- and Dick Durbin and Jan Schakowsky too -- pulled the rug out from under us so that they could waste $4 million on their handpicked candidate who refused to take a stand on the issues and never bothered to get a field operation going.
June 25, 2008 11:14 PM | Reply | Permalink
Yes, but Republicans represent their base. The bus may eventually leave without them but they don't run over the base leaving the parking lot.
June 25, 2008 7:34 PM | Reply | Permalink
What bothers me is that Obama is now running like someone who thinks he's sitting pretty -- just trying to avoid trouble and coast in. Kerry thought he could do that, too.
June 26, 2008 5:30 AM | Reply | Permalink
you and obama are so afraid of republicans. campaigns that reek of fear are losing campaigns. campaigns that capitulate to fear and parrot the opposition's fear-mongering are already lost.
chickenshits. the both of you.
June 29, 2008 2:33 PM | Reply | Permalink
This is my one bummer so far w/ Obama. Immunity for the telecoms isn't about national security one bit...it is about protecting the Bushies who repeatly have broken the law over our civil rights. We need to know what was done and by whom to build protections for the future.
I take this as a huge message of Obama will protect America and he won't be fucking w/ our civil rights when he is President,
June 25, 2008 6:32 PM | Reply | Permalink
What irritates me about this whole is not this bill will grant immunity to telcoms in this specific case. What irritates me is that it sets a dangerous precedent. Essentially any President down the line can make any request from any company, no matter how inane or lawful, and say that it is perfectly fine to comply because the President says so. The President, in effect, can preemptively make and choose to selectively enforce any law he or she so chooses.
This has always been a general constitutional process question to me. It only makes me more irritated when the candidate that I voted for and donate to on a monthly basis, the candidate that studied and taught constitutional law, basically comes around and says that it isn't a big deal.
June 25, 2008 6:32 PM | Reply | Permalink
I agree. I am still an Obama supporter, but every new word out of his mouth on this subject makes my hackles stand up a little bit more.
June 25, 2008 6:37 PM | Reply | Permalink
Same here. And now I wonder what else is coming down the road, what is the next disappointment Obama will throw out? This is the person the Republicans call the most liberal Senator?! Again, Russ Feingold and Christopher Dodd got it right.
June 25, 2008 10:08 PM | Reply | Permalink
Whatever, Obama has to take the position he is taking out of necessity. It sucks, but whatever, there are MUCH bigger issues out there, and the truth is, it doesn't matter what the FISA bill says (aside from immunity) because Congress won't hold Bush accountable if/when he breaks the law anyway. Not to mention Obama can UNDO all of this after he takes office with a bigger Democratic majority.
The immunity is the only thing that is really shitty about the bill, although I did see some analysis that said that the wording of the bill was so shitty that there could still be an opening to go after the telecos.
June 25, 2008 6:41 PM | Reply | Permalink
He cannot undo retroactive immunity. Once the immunity is granted, those suits are dismissed and that is the end of it. That is why it is so important that the retroactive immunity provision not make it. Incidentally, I am kind of hard pressed to know what to make of the claim that there are bigger issues at stake. Care to name one? This FISA bill speaks to the issue of rule of law and restraints of executive power. I am not sure that there is anything more fundamental (and thus more important) than that. I can imagine that there are other matters at stake of equal importance, but I would be hard pressed to think of any that are more important.
June 25, 2008 6:50 PM | Reply | Permalink
I find your analysis on this subject very level headed. As to what is bigger that is at stake...my guess is many of the unblinking want Obama to win at any cost. That is all that matters to them now.
June 25, 2008 7:09 PM | Reply | Permalink
He can, however, consent to the federal government being sued on this issue.
June 25, 2008 7:17 PM | Reply | Permalink
Well, at least take the guy seriously. He's supporting the bill. He isn't going to undo it later. You folks sometimes see what you want to see. It's easy to be all things to all people until they start recording your votes. That's what defeated Hillary. People like me held her accountable.
June 25, 2008 6:54 PM | Reply | Permalink
What necessity? This election isn't going to be won or lost on the FISA issue. Our civil liberties are going to lose but it's not going to decide the election. What it tells me is that if Obama had been in the Senate in 2002 he's have made the easy vote with Hillary. It pretty much shows me there is no difference with them on selling out to the war hawks on "national security" so I figure I've been had (apologies once more to the Hillary supporters).
June 25, 2008 6:59 PM | Reply | Permalink
Retro-active immunity hasn't flown thru the federal courts system to stand the test of constitutionality yet. previous attempts at this have failed. There isn't really a concept of retro-active immunity that has been upheld in the courts.
June 25, 2008 6:44 PM | Reply | Permalink
No court will stop retroactive immunity if the law is passed. Please do not tell me you really think the ex post fact clause applies here. If you do you are flatly wrong in your analysis. Moreover, last time I checked the 4th Amendment has nothing about making telcos liabile.
June 25, 2008 6:56 PM | Reply | Permalink
ex post facto clause
June 25, 2008 6:57 PM | Reply | Permalink
Well, that is at least a hopeful thought. So maybe there is yet hope even if this travesty of a bill passes.
June 25, 2008 6:58 PM | Reply | Permalink
Obama seems to have made a hard right turn since he won the primary.
Obama, I hardly knew ye.
June 25, 2008 6:53 PM | Reply | Permalink
In the event the telecoms haven't already been granted immunity by then, would it be possible for Bush to grant a sort of preemptive blanket pardon on his way out of office?
June 25, 2008 6:54 PM | Reply | Permalink
Pardon is for crimial absolution, not civil redemption.
June 25, 2008 6:58 PM | Reply | Permalink
I suspected it wasn't applicable in instances where no criminal charges had been filed.
June 25, 2008 7:16 PM | Reply | Permalink
He would have to specifically name people pardoned for it to be effective.
June 25, 2008 7:00 PM | Reply | Permalink
For past criminal activity.
June 25, 2008 7:05 PM | Reply | Permalink
I think folks should get real about the decisions Obama has to make to avoid getting painted into a corner in the general election. A vote against this bill would ensure ads portraying him as a blanket softie on national security. Standing on "principle" about suing phone companies (at most secondary actors) is hardly worth that.
June 25, 2008 7:05 PM | Reply | Permalink
No, leadership is explaining that we can have national security and the Constituion at the same time. We have for over 200 years and no reason suggests that this cannot occur except for the cowardice exhibited by Obama and others to stand up for once.
Hell, national security would be served better if government could bust down the doors of homes, dettain anybody they wanted without a warrant, subject them to prolonged interrogation and torture.
June 25, 2008 7:09 PM | Reply | Permalink
Yes, yes, yes no one is saying security begins in your own home keeping it safe and secure from invasion by the King's men entering without warrants. Security begins at home.
June 25, 2008 7:11 PM | Reply | Permalink
Those ads are going to run anyway. You think people who think he's a closet Muslim giving terrorist fist bumps are going to be influenced by the FISA vote?
June 25, 2008 7:09 PM | Reply | Permalink
Great point.
June 25, 2008 7:20 PM | Reply | Permalink
That's for sure.
The only difference is that now the ads will say that Obama's flip-flops on National Security put the children at risk, followed-up with "John McCain, Right from the beginning" or some such thing.
June 25, 2008 9:23 PM | Reply | Permalink
Thank you professor.
Amen to that!
June 25, 2008 7:12 PM | Reply | Permalink
A bitch whines about sexism in academia. Then she joined the mob to brutalize another woman who tried hard to break the last glass ceiling. Some woman was supposed to be a Harvard professor but had time to troll a site populated by low-life Obamabots. If only I had a tenure obtained through lawsuit!!!
June 25, 2008 7:12 PM | Reply | Permalink
A nation not respecting its citizens' rights set forth in the Constituon and laws promulgated in furtherane of the same does not deserve to be secure.
June 25, 2008 7:12 PM | Reply | Permalink
Pander to win. Win at all costs. Standing on principle is supposed to be the hallmark of Magic Obama. You are correct, he has no principles and is willing to play the game to win at any cost.
June 25, 2008 7:14 PM | Reply | Permalink
You are talking discipline here? Win at all cost is the order of the day. How would you otherwise smear a former President who was deemed the first black president as racist? His supporter, the female governor has already started inuendoing that the Republicans will use code words to run against Obama. Really, they better not open their mouths. Otherwise, be careful! You are now free to be called racists!!! This is so sweet - asking the other side to fight with one hand tied to the back.
June 25, 2008 7:18 PM | Reply | Permalink
As opposed to what? Losing? Don't be a naive nitwit. He won the nomination so he could WIN the election--not lose it, you bonehead.
You think Hillary would play this any differently?
June 25, 2008 7:20 PM | Reply | Permalink
No, but that is why I bothered to go out in cold to vote against her. I needn't have bothered. November is not so warm in MN either.
June 25, 2008 7:30 PM | Reply | Permalink
http://www.cqpolitics.com/wmspage.cfm?docid=news-000002904602
Agreed. I hate this issue, I hate Obama's position on this issue, and I hate that he (and we) are IN this position in the first place. But I fully understand what's going on. He's damned if he does and damned if he doesn't. He's choosing purgatory over hell on this one.
June 25, 2008 7:18 PM | Reply | Permalink
He can always vote "present"!
June 25, 2008 7:23 PM | Reply | Permalink
Wish clinton would have at least voted present on killing hundreds of thousands of innocent iraqi women and children and thousands of american heros. That might have raised some questions and stopped the slaughter.
June 25, 2008 8:44 PM | Reply | Permalink
i thought obama wasn't afraid to have that debate?
chickenshit.
June 29, 2008 2:41 PM | Reply | Permalink
As a lawyer, I've never quite understood why the netroots get so upset about this immunity issue.
Jeebus - it always comes back around to WHY didn't Bush use FISA? Bush didn't even go to congress ONLY advised a very select few members of what he was doing - breaking the law, I don't know WHY - I would like to know why Bush was scared of FISA and this bill has more crap in it that simply the immunity issue.
You can't pretty up this stuff, Obama said he would fight against the immunity issue and for our civil liberities BUT changes his mind the minute he gets the nomination so I have to wonder would he even have won the nomination when we now find out that his speeches are utterly meaningless. That is a major flip-flop.
Obama was in hiding UNTIL Pelosi and Hoyer TOLD him what to do.
Josh Marshall says where is he, after all he is our elected guy, REMEMBER.
Greenwald says: We'll have to send out an Amber Alert soon. Oor fearless leader was hiding - waiting for directives.
And instead of these blogs getting in Obama's face with "what to do mean", where they all should have been, they are telling us to hold our collective noses and vote for something most of us wouldn't mind in least seeing Bush and Cheney impeached for, breaking their oath of office.
Obama is lost, he doesn't know what to do, except to cowardly fold with the worst of the Democratic Party - it isn't leadership, it isn't even centerism - it's just a cowardly major sell out, and Obama cannot say he is "Change you can believe in" - there is nothing you believe in if Obama cowardly doesn't do what he said he would do and HE DIDN'T.
You know Bush said he was a "United not a divider" and Bush said he was a "compassionate conservative" but all I remember is Rove rage war against anything liberal and Bush lying about evidence for war. Lies do matter.
Obama is a coward that hides, really cares nothing for the hundreds of people who donated to his campaign in good faith that he would lead and provide leadership.
So it will all be down hill from here. Obama cannot lead if he couldn't even stand up against this bill, he can only fold. It just isn't going to work. It's all a crap shoot. Obama is going to stop this downward slide, largely because infatuated Dems fear to control their own Party, indeed have no say, and care only about labels – but not policies. Just pretend Bush is a democrat and what hate him so much.
Everytime Obama folds, all of us that rejected this act, are going to be saying - see, Obama is hiding out again, can't lead, so like I said it's crap shoot, and we'll be shooting everything we see Obama shrink from words of his own speeches, so that in the end he'll so full of holes, who mostly likely lose this election. I don't know why Dems are letting him get away with this.
June 25, 2008 7:09 PM | Reply | Permalink
Obama promised to filibuster any bill with telecom immunity in it. Now he's not only not going to filibuster, but he's actually planning to vote *for* a bill with immunity?
After the race speech and his explanation of why a gas tax holiday was the height of idiocy, I had high hopes for Obama. Now it looks like he's going to run the exact same overcautious campaign we've been seeing from timid Democrats for too long. Oh well - so much for Change With A Capital 'C.'
And the real kicker is that there is NO demand from the American people for immunity for telecoms. None.
I guess I'll still vote for him, probably. But not with any enthusiasm. And I certainly won't give any of my time or money.
June 25, 2008 7:10 PM | Reply | Permalink
Obama says things have changed. What has changed? Obama has become comfortable with the fact that he is a fraud, coward and a slave to corporate interests like most other current dems.
June 25, 2008 7:14 PM | Reply | Permalink
Things of course have changed. He now has the nomination in the pocket. Screw you, progressives! this O-man is a winner! Who cares about telecom immunity. You want to call me for flop-flip? How dare you? Are you implying a black man cannot change his mind? The American people will not stand for that!!!
June 25, 2008 7:21 PM | Reply | Permalink
No thanks Aimey May. Progressives would rather remain virgins for life than to get screwed by a Racist Sewer Rat such as yourself. Begone Aryan Nation Troll(ANT)
June 25, 2008 7:26 PM | Reply | Permalink
If you are happy to be screwed by the O-man, who can argue with you? I'm not your parents or your friend. I am just a Hillary fan turned McCain supporter.
June 25, 2008 7:29 PM | Reply | Permalink
One of the dwindling few.
June 25, 2008 7:34 PM | Reply | Permalink
No you are not. You are what you have always been; a racist sewer rat, Aryan Nation Troll.
June 25, 2008 8:37 PM | Reply | Permalink
I do not think that it is fair to say that he is going to run exactly the same timid campaign that we saw in 2000 or 2002 or 2004. He has already shown more courage and willingness to hit back than did Kerry or the senators and congressmen of 2002. His willingness to push back on the gas-tax holiday nonsense and similar gutsy moves gave me hope that he would mount a really vigorous defense of the right position on this issue. I, like yourself, am disappointed that he blinked here. Still and all, while he is evidently not as courageous as I had hoped, I think that justice demands that we admit that he is still an improvement (and a sizable one at that) over what we have come to expect from democratic nominees in recent years.
June 25, 2008 7:18 PM | Reply | Permalink
He didn't blink. He's taking one for the team. It sucks, but this is his best option.
June 25, 2008 7:22 PM | Reply | Permalink
i appreciate that there are a lot of lawyers commenting. and i am not a senator, nor a presidential candidate. i understand "fight to remove immunity" to mean, it's a bad thing. this was stated recently, so what HAS changed? electorate perception of a "no" vote=bad nat sec.
but, if it's "going to pass anyhow" then why NOT vote no?
my poor little gut says "if bush wants it, it's evil." and come on, why choose--CHOOSE--not to use FISA?
it's BUSH who's putting immunity above nat sec, by INSISTING it be there. ask him why.
(or show me a link?)
best thread of the year. thank you all (mostly)
June 25, 2008 8:25 PM | Reply | Permalink
what 'team'??
the telecoms??
bushco??
the blue dogs??
???
he isn't taking one for any 'team' that i am a member of. which can only lead me to believe that he is playing for the wrong side if he wants my vote.
June 29, 2008 3:19 PM | Reply | Permalink
But the gas-tax thing isn't gutsy. It's doesn't matter. Either way that's just a DLC throw the little people a bone kind of thing. The big thing is war. Is he going to war with Iran? If he can't face down a few blue dogs on FISA is he going to stand up against blue dogs, AIPAC, neocons on issues like that?
I'll trade a gas tax holiday for someone who's going to really end one war and prevent another. I'm not liking what I'm seeing...
June 25, 2008 7:26 PM | Reply | Permalink
Here's what's more important (this is relatively speaking):
These are the safeguards Obama was referring to in the video clip. He's arguing, I believe, that telecom immunity is not as important as ensuring these safeguards are in place (these were missing in the original bill).
June 25, 2008 7:30 PM | Reply | Permalink
is that "per se?"
June 25, 2008 10:28 PM | Reply | Permalink
This still isn't making sense to me. No I'm not a lawyer.
But if the telecoms acted legally then why do they need immunity?
And while this new FISA bill is being argued, the intelligence agents can still get an OK to monitor traffic inside or outside the U.S. if they can produce evidence to support the need for it. FISA wasn't revoked; it's being rewritten to protect our constitutional rights.
They can monitor on a dime and get approval by showing the evidence within 48 hrs. And it's also my belief that FISA never says no.
So NO, I don't think the immunity clause has any business in the rewrite and should not be included. And I've been a supporter of Sen. Obama almost from the beginning, but I think he's wrong here and I'm very disappointed.
June 26, 2008 12:23 AM | Reply | Permalink
Since when is a memo from the president a "an apparently lawful order by government officials"?
And since when do government officials "[have] the power to give such an order"?
I'll add this part, then respond more "In fact, under the law as it existed at the time the gov’t could go to a judge for pre-approval OR direct the records be turned over and then have it retroactively appoved by a judge. So there was no way the telecom could know, at the time they were told to turn over the records, if the order was going to be given approval in the future, even if it didn’t arrive with a warrant."
Yes there was a way the telecoms could know if the order was legal. The order would have been in the form of a WARRANT. If that warrant didn't appear, the telecoms knew the law full well and could have provided the data without a warrant for the time allotted by FISA. Once that time expires, the telecoms were legally obligated to shut off the spigot unless the Feds produces a warrant.
This is not rocket science. There was no legal basis for providing 5 years worth of data with no warrant.
June 25, 2008 7:21 PM | Reply | Permalink
USA PATRIOT ACT.
June 25, 2008 7:39 PM | Reply | Permalink
came LATER.
June 29, 2008 3:25 PM | Reply | Permalink
He says that the bill has changed. Has it, and what are the changes. He said that it is a close call for him. I would like to know what specific changes have been made in the bill since he said that he would filibuster it. Does anyone have those details. If the bill does what he says it does, and can be enforced, then I can live with him voting for it. I just would like to know what safeguards have been added, to make sure that the FISA court is being used as intended.
June 25, 2008 7:23 PM | Reply | Permalink
This is what I gleaned from a Washington Post piece. Those changes, in the grand scheme of things, are more important than the telecom immunity argument, but as you can see on this thread other's don't view it that way.
June 25, 2008 7:41 PM | Reply | Permalink
The link to the article:
http://www.washingtonpost.com/wp-dyn/content/article/2008/06/19/AR2008061901545_2.html?hpid=moreheadlines&sid=ST2008061903766
June 25, 2008 7:43 PM | Reply | Permalink
Thanks for the link.
The following excerpt also sounds like a big improvement, since it would stop future Presidents from making an end run around FISA like Bush did.
Pelosi said the most important part of the deal is "exclusivity" language making it clear that the surveillance law is the only legal authority when it comes to government spying. In defending its warrantless spying program in the past, Bush administration lawyers argued that the commander in chief's warmaking powers trumped such considerations."
June 25, 2008 8:15 PM | Reply | Permalink
Does that really mean anything? My understanding was that the old bill said FISA was the exclusive means to conduct surveillance under, too. Doesn't seem to have helped.
June 25, 2008 8:36 PM | Reply | Permalink
Yes, but on a forward looking basis telcos are immune if they have the letter from the executive branch even if the info request from the feds to a telco is sans a warrant. The feds are immune so who is accountable if the feds swoop up as much data as they want wihtout a warrant? Who will ever know? Do not trust government.
June 25, 2008 7:45 PM | Reply | Permalink
If you would like to see directly for yourself:
You can get the full text of the new bill here..
You can get the full text of the bill Obama voted to filibuster earlier this year here.
June 25, 2008 8:33 PM | Reply | Permalink
The crux of the matter has nothing to do with national security, immunity for telecoms, or the general election. The crux of the matter is that he lied right to your face.
June 25, 2008 7:24 PM | Reply | Permalink
Well, at least he's leaving no ambiguity about the fact that he'll be governing from the Steny Hoyer wing of the party (if his choice of a Rubin protege as his chief economic adviser hadn't already signalled that). I suppose that's better than Bill Clinton who didn't show his true colors till after he was elected.
You won't be getting another dime from me, Senator. I can't remember any more why I cared about your defeating Senator Clinton- you and she are interchangeable triangulators. Feh.
June 25, 2008 7:25 PM | Reply | Permalink
While I understand that Obama had to make a pragmatic choice here, I agree with A Missouri Voter about the false dichotomy.
Saying the telecoms should be given immunity because the lawsuits would go nowhere is specious. There's still a violation of principle involved. Phone companies are supposed to be accountable to their customers, and they sold out these customers in knowing abrogation of the law.
June 25, 2008 7:27 PM | Reply | Permalink
Obama gets no credit for his proven judgment on numerous issues. Each time he makes a decision someone doesn't like, they start questioning his judgment, motives, etc. etc. Yet he is proven right again and again. What in the hell does this guy have to do to earn the benefit of the doubt?
June 25, 2008 7:27 PM | Reply | Permalink
His proven judgment on which issues? Where was he ahead of the curve on anything?
June 25, 2008 7:36 PM | Reply | Permalink
Iraq.
June 25, 2008 7:42 PM | Reply | Permalink
Well, a LOT of people were against the Iraq War in 2003, including those he was running against in the Democratic primary for Senate in Illinois. I'm not sure he deserves exceptional credit for this judgment. (If he were for the war, he would never have been elected to the US Senate and wouldn't be running for President now.)
June 25, 2008 7:50 PM | Reply | Permalink
Obama, like any elected official, does not get the benefit of the doubt, but he was openly ahead of the curve with specific keen insight with others on Iraq.
June 25, 2008 7:57 PM | Reply | Permalink
What was his "specific keen insight"?
June 25, 2008 8:03 PM | Reply | Permalink
Insight? Obama nailed the Iraq fiasco by correctly opining it would be costly and never ending, that this is an internal civil situation, that Iraq had nothing to do with 9/11, that it would stretch our military to the extent Afghanistan would get ignored and that there would be no way to define victory.
Obama nailed Iraq in 2002. Hillary fucked Iraq up when it counted and never could admit the clear ertor in her ways until it was way too late. This is the key issue that allowed Obama to defeat Hillary, like it or not and/or whether you can admit it or not.
June 25, 2008 8:29 PM | Reply | Permalink
I'm not sure Obama "nailed" this. LOTS of people knew this and were saying it! So, I'm not sure how "specific" or "keen" this insight was, or what would make it "his."
June 25, 2008 8:34 PM | Reply | Permalink
Have you seen the clips of him on Iraq in 2002? Yes, he nailed it. Because he nailed it so clean he beat Hillary. Hillary missed it and lost because of this error. You asked and you received.
June 25, 2008 8:41 PM | Reply | Permalink
i nailed that one too. should i be given the same benefit of the doubt?
June 29, 2008 3:31 PM | Reply | Permalink
He could honor his promise.
June 25, 2008 9:49 PM | Reply | Permalink
Excellent question, Observer. And there are folks whose respect and trust he will never earn. You will note that most of his loudest critics on this board over this issue were former Hillary supporters.
June 25, 2008 10:02 PM | Reply | Permalink
it does, maybe, make sense to go to his website. it's been direct so far; maybe clarification is best from the leader's mouth? i do find much evidence that he takes his position as senator seriously, from the kind and number of bills introduced, but there's more.
June 25, 2008 10:36 PM | Reply | Permalink
Some of us supported Clinton because we thought Obama was exactly the fraud he is turning out to be.
June 26, 2008 1:35 PM | Reply | Permalink
And the basis for calling him a fraud?
June 26, 2008 3:54 PM | Reply | Permalink
uh: vowing to filibuster on the immunity provision during the primary.
pay attention.
June 29, 2008 3:39 PM | Reply | Permalink
that is completely false.
June 29, 2008 3:37 PM | Reply | Permalink
why on earth would we need to give him (or anyone else) 'the benefit of the doubt'??
what does that even mean??
why can't his position just be defended with logic and reason? why should we have to resort to blind faith?
sorry but i'm not signing up for any personality cults.
June 29, 2008 3:35 PM | Reply | Permalink
Legal arguments aside, the salient point for me is that if he can't be counted on to keep his word on this item then can he be trusted on his other pledges as well?
June 25, 2008 7:28 PM | Reply | Permalink
My concern too.
June 25, 2008 10:17 PM | Reply | Permalink
Here's my view about the situation.
We can lament that the Constitution will fall by the wayside and civil liberties will not be protected through this passage of a BILL which can be easily overturned in another administration. If we don't not steadfastly hold our support with Senator Obama, we risk even worse consequences.
We risk that John McCain will elect conservative justices that will feel more inclined to follow the republican principles and with those justices, McCain can actually call the "warrantless wiretaps", not only legal but CONSTITUTIONAL.
This is why my support for Sen. Obama must remain in place despite my feelings for the bill, and this is why I encourage others to follow my lead.
June 25, 2008 7:29 PM | Reply | Permalink
We can lament that the Constitution will fall by the wayside and civil liberties will not be protected through this passage of a BILL which can be easily overturned in another administration. If we don't not steadfastly hold our support with Senator Obama, we risk even worse consequences.
I would say this goes without saying, but that doesn't mean we keep our mouth's shut about it. Obama is making a calculation here that's it more prudent to support this bill than to be against it. In my view, he is wrong on that count.
This is the first time he's not had faith that he could explain the merits of a decision and he would get support for that decision. And this time it's on the biggest stage he's ever been on. That's why it's disappointing. Easy to have principles when you're a lowly freshman senator. Much harder when you're campainging for president.
June 25, 2008 7:54 PM | Reply | Permalink
Oh, absolutely. It appears that I'm being about as hard on Obama as anyone here, but I agree.
I do have to admit, though, that I've gone from 'enthusiastic supporter' to 'guy who will pull the lever for Obama to keep the other guy out' in about 2 days.
June 25, 2008 7:55 PM | Reply | Permalink
June 25, 2008 7:39 PM | Reply | Permalink
[applause]
June 25, 2008 7:52 PM | Reply | Permalink
Now, it's been a few years since I worked in DC, and I was trained as an historian, not a Constitutional lawyer, but I want to weigh in with some down home common sense--if I have any.
One, I am with Pub Hussein on the point that it's difficult at this point to know exactly what actions were taken by the telecoms, so it is hard to evaluate the benefits of a lawsuit. I bring this up not to exonerate the telecoms BUT TO HIGHLIGHT OUR LACK OF CLEAR KNOWLEDGE ABOUT THE TOPIC.
Two, you guys are going 'round and 'round about why Obama supports the bill and Dodd doesn't, and what will Hillary do? We all seem to question their motiations, BUT THIS IS DIFFICULT GIVEN OUR LACK OF CLEAR KNOWLEDGE ABOUT THE CONTENTS AND WORDING OF THE COMPROMISE BILL.
Three, its true that Obama said that withholding immunity from the telecoms is less important than national security, and this has drawn legitimate criticism from these here bloggers, BUT IT'S DIFFICULT TO REFUTE GIVEN OUR LACK OF CLEAR KNOWLEDGE ABOUT THE SECURITY SITUATION.
I've never been one to trust government leaders, candidates, (nuns); let's just say I'm willing to question authority if necessary, and it often is. But I like Obama, I voted for him, and I'm gonna trust his judgement until he makes a egregious error, which this is not. Cut him some slack, he probably knows more about all this stuff than any of us.
June 25, 2008 7:47 PM | Reply | Permalink
This seems like a pretty important get:
June 25, 2008 7:49 PM | Reply | Permalink
I agree this could be a pretty big get. And I don't frankly understand why the Bush administration was willing to permit that section in the bill.
Obama referenced these Inspector General provisions twice in his initial statement of support for the proposed FISA bill. He referenced them implicitly in today's statement, when he said that telecom immunity "per se" was not all that important. It sets a bad precedent for future lawbreakers, of course, but its real importance lies in the fact that it has been the only avenue through which the public could potentially learn exactly what Bush had the telecoms do. This would seem to be a valid alternate avenue.
Note especially, the report is due six months into the next Administration. Presumably Bush will refuse to let the IG investigation begin, by violating this law - about the seven hundred thirty fifth law he's violated - where it requires him to rapidly grant security clearances to the investigators. But the IGs will still have six months with no stonewaller stopping them.
Better yet - the IG investigation will have been, as part of this bill, eagerly signed off on by the GOP and the President. So there can be no hue and cry of what a terrible, partisan guy President Obama is for raking over these cold dead issues with investigations of his own. These will be elephant approved investigations.
The rest of the bill, of course, is pure poison. It essentially eliminates all meaningful oversight whatsoever. (It allows the FISA court, the "watchers watching the watchers", to peek only once a year, not at what the Executive is doing, but at what the Executive claims, in broad terms, it is going to do.)
Since Bush is going to break any law that does constrain him, and Nancy Pelosi has announced that bringing Bush to account, no matter how many laws he breaks or how blatantly, is "off the table" - Barack may have made the judgment that it makes no difference what is actually in this particular law. It will not affect Bush's behavior. If McCain is elected, the Constitution is gone anyway. And if Barack is elected, he can go to work setting things to rights.
That's the case one can make for Barack's present stance. The case he himself publicly makes is, frankly, a crock. But he couldn't spell out the case I just made. It takes more than twenty seconds to explain, and would therefore never make it through the Wurlitzer to the public.
Is that really what Obama is thinking? Beats me. I know he's smarter than I am. I know he's smarter than Pelosi or Reid. I know he holds his cards close to his chest, and I'm not likely to read them any sooner than the Republicans can. So I am not prepared any longer to trust him 100 percent; neither am I prepared to assume that he has abandoned the Constitution in the same craven way as the congressional leadership.
June 25, 2008 9:11 PM | Reply | Permalink
June 25, 2008 7:52 PM | Reply | Permalink
That's right and saying that and playing the "national security" card in front of the left is like waving a red flag in front of the bull. His campaign must know that this issue has been huge to people on the left for at least a year and he's a making a choice here to stick it to us to impress somebody and I'm not convinced it's even aimed at the dittoheads, probably sucking up to the neocons in our own party.
June 25, 2008 7:57 PM | Reply | Permalink
Yeah, but Blue, security IS important. I hate Bush for ripping words out of my vocabulary because he has twisted and abused them so shamelessly. 'Security'. 'Liberty'. 'Freedom'. It's hard for us on the left to even use these words anymore without breaking out in hives.
I think Obama is a decent, intelligent leader. When he says "National Security", I have to remind my mind to process it in a left to center-lert context. not the somewhere-right-of-Jesse-Helms-and-twice-as-dumb context I've been used to for the past eight years.
He's running for president. He will have to talk about presidential things, and they won't all be alternative feuls and college grants. Presidents have to dabble on the dark side and talk about security from time to time. "It is what it is."
June 25, 2008 8:09 PM | Reply | Permalink
Security IS important but The Bill of Rights are security too.
June 25, 2008 8:31 PM | Reply | Permalink
Yes Steve. The 9/11 Commission was dead on right. Obama today stated that the FISA Court is necessary to combat terrorist action. No disagreement there. The point is the new legislation SEEMS to reign in the abuses of the Bush administration (I can't claim to know the exact contents of the bill), and Obama SEEMS to believe that these aspects of the bill outweigh the telecom immunity question. I am under the impression that Obama wants to dial back the abuse of the FISA Court without handicapping it or doing away with it altogether.
June 25, 2008 8:01 PM | Reply | Permalink
I have a lot more faith in Feingold and Dodd on understanding the details of the bill.