Obama and FISA

tag:blogger.com,1999:blog-5763148142343308159.post-54996467209323190192008-07-21T11:58:00.003-04:002008-07-21T15:44:39.106-04:00Obama and FISA<div align="justify">Okay, in response to recurrent requests(demands?) by our readers, I'm going to try to set out my current thoughts on the FISA controversy. These opinions are not firm or final, as the questions related to FISA are complicated, the history is very involved, and the more information I have a chance to review the more my thoughts evolve. So consider this a preliminary assessment, a work-in-progress. First, some background. Like so much of our current political landscape, FISA can be directly tied to the Watergate era. The Senate's "<a href="http://en.wikipedia.org/wiki/Church_Committee">Church Committee</a>" was convened to investigate the operations of U.S. intelligence activities after a series of revelations of possibly illegal domestic activities, including Christopher Pyle's 1970 revelation that <a href="http://www.cmhpf.org/senator%20sam%20ervin.htm">the U.S. Army had been involved in domestic spying on the civillian population</a>; and Seymour Hersh's 1974 New York Times article about the CIA's <a href="http://en.wikipedia.org/wiki/CIA_family_jewels">Family Jewels</a>, a set of internal CIA reports detailing the agency's activities going back to the 1950s. The Family Jewels reports were commissioned in response to press reports of the CIA having been involved in the Watergate scandal. The Family Jewels reports stated that the CIA had been involved in wiretapping news reporters; domestic wiretapping and surveilance; assasination plots against foreign leaders; and building up intel dossiers on thousands of members of the anti-war movement, among other questionable (or clearly illegal) activities. Both <a href="http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act">FISA</a> (Foreign Intelligence Surveillance Act) and the <a href="http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Court">FISC</a> (Foreign Intelligence Surveillance Court) were created based upon the recommendations of the Church Committee. This was all part of a general trend of Congress asserting much more aggressive oversight powers over the Executive Branch than it had tried to wield before. After the September 11 attacks, several conservative commentators started talking about how the Congressional oversight heralded by the Church Commission had <a href="http://hnn.us/articles/380.html">crippled the CIA</a>. The creation of the CIA Inspector General's Office, with standing orders for the Inspector General to report to Congress has, according to critics, rendered the CIA too cautious, worried about controversy. The basic argument is that if CIA had been as unfettered in the 1990s as it was in the 1960s, September 11 would not have happened because the CIA would have had better HUMINT (Human Intel, gathered from actual spies and turncoats), which is more effective than SIGINT (Signals Intelligence) for detecting clandestine cell organizations like al Queda. Setting aside the relative merits of HUMINT and SIGINT, the most significant aspect of the post-9/11 security discussions is the now-recurrent meme that Congress impairs security when it impairs the Executive Branch's ability to act without oversight. In 2007, after the Bush administration's warantless wiretapping program had been revealed by the N.Y Times, Congress passed the <a href="http://en.wikipedia.org/wiki/Protect_America_Act_of_2007">Protect America Act of 2007</a>, which amended FISA by allowing the Executive Branch to intercept communications that begin or end in a foreign country, without the involvement of a FISA court. Prior to that, FISA required that requests for surveillance warrants against foreign intelligence agents be <a href="http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court">submitted to the FISC</a>. The Protect America Act, then, reduced the amount of judicial oversight, and made it easier for the administration to intercept communications. Obama <a href="http://www.votesmart.org/voting_category.php?can_id=9490&type=category&category=61&go.x=16&go.y=14">voted against</a> the <a href="http://www.votesmart.org/issue_keyvote_detail.php?cs_id=14626&can_id=9490">Senate version of the Protect America Act</a>. The Protect America Act had an automatic sunset provision which rendered it ineffective as of February 17, 2008. Congress had to draft a replacement bill, and that process began in late 2007. Obama made a number of statements during the debate period for the new FISA bill. In August 2007 he gave a speech at the <a href="http://www.votesmart.org/speech_detail.php?sc_id=310310&keyword=fisa&phrase=&contain">Wilson Center</a>, in which he addressed the overall strategy for the War on Terror, and, among other things, rejected the "false choice between the liberties we cherish and the security we demand" and stated that the FISA courts work and the system of checks and balances between the co-equal branches of government works. In December 2007, he was one of 14 Senators who <a href="http://www.votesmart.org/speech_detail.php?sc_id=341488&keyword=fisa&phrase=&contain">sent a letter to Majority Leader Reid</a> asking that the full Senate consider a new draft FISA bill which would provide more oversight than the Protect America Act and would not grant immunity to telecoms that participated in the wiretapping program. Notably, the letter states "it would be appropriate to require the proponents of immunity to make their case on the floor." Obama and his co-writers were initially against immunity, but open to debate. In February 2008 Obama spoke in favor of an amendment stripping retroactive immunity for telecoms out of the FISA draft (he missed the vote on the amendment due to the primary campaign), and issued a <a href="http://www.votesmart.org/speech_detail.php?sc_id=347044&keyword=fisa&phrase=&contain">public statement</a> which read, in part, "There is no reason why telephone companies should be given blanket immunity to cover violations of the rights of the American people - we must reaffirm that no one in this country is above the law." A number of different versions of the FISA amendment were offerred in the House and in the Senate. Some granted immunity to telecoms, others did not. The <a href="http://en.wikipedia.org/wiki/FISA_Amendments_Act_of_2008">version that passed on July 9</a> provides retroactive immunity to the telecoms. Obama voted in favor of the new bill. This is Obama's <a href="http://www.talkingpointsmemo.com/archives/201032.php">public statement on the FISA compromise</a>: <blockquote>"Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders. "That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past. "After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act. "Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance - making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act. "It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people."</blockquote> Obviously, a lot of people are angry with Obama for changing his position on FISA. Prior to the July vote, his public statements had been against telecom immunity, and in favor of restoring the oversight of the FISC. The bill that he voted for contained only the restoration of FISC's power, and gave immunity to the telecoms. As shown above, Obama seems to have followed the general approach of not letting the perfect be the enemy of the good. The immunity provisions were included in the bill, which he wouldn't have preferred, but the bill returned power to the FISC. He chose not to vote against FISC oversight in order to make a point about telecom immunity. Obama's course of action, and that of Congressional Democrats overall, has been referred to as "caving in" to the Bush administration, and I don't think that is entirely without merit. Certainly, the Democrats were not able to muster the support they needed to pass a bill that did not grant immunity to the telecoms, which is exactly what the Bush team was hoping would happen. It is easy to believe that the Democrats simply lost their spine when dealing with the GOP. On some levels, the statement is true. However, we must consider the narrow margins by which the Democrats hold the House and Senate. While House rules allow bills to be passed by a simple majority, in the Senate the majority cannot force a bill to the floor unless there are 60 votes in support, because that is the number of votes required to break a <a href="http://en.wikipedia.org/wiki/Filibuster#United_States">fillibuster</a> by invoking <a href="http://en.wikipedia.org/wiki/Cloture#United_States">cloture</a> (a procedural device to end debate on a bill). The Democrats only have 49 Senate seats, 51 if you include "independent" crypto-Republican Lieberman and independent Bernie Sanders. On their own, they cannot break a filibuster, so they need some degree of Republican support to get anything done. Now look at the vote margin for new FISA amendment: <a congress="110&session=2&vote=00168'">69 to 28</a>, enough to invoke cloture and break any filibuster, such as the one mounted by <a href="http://en.wikipedia.org/wiki/FISA_Amendments_Act_of_2008#Legislative_history">Sens. Feingold and Dodd</a>. Obama had indicated that he would join in with that fillibuster, but did not do so. Was Obama being weak by voting with the majority and not joining the filibuster? One could make an argument that he was, but my take on it is that he was being pragmatic. For any given bill moving towards a floor vote, most if not all senators are going to be aware of the rough margin in favor before the vote ever happens. Obama would have known that a filibuster was going to fail, and it is very possible that he saw a filibuster under those circumstances as a waste of time. Further, the optics of being on the losing side of a filibuster aren't necessarily favorable. All of this was taking place in the larger context of the presidential race. Republicans have been using security issues against Democrats for decades (basically since McGovern's 1972 campaign). The image of being too "soft" on defense issues has stuck to the Democrats, and it has cost them electorally. Congress has potential vulnerability in the sense that any terrorist attack that took place after Congress had moved to limit the Executive Branch's powers could be blamed on the "meddling" of Congress. I don't think the argument would hold water, but there are plenty of voters who might go along with it. As an opponent of the Iraq war, and an advocate for withdrawal of U.S. troops, Obama has his own security vulnerabilities going into the election, separate from the Congressional Democrats generally. While I don't think it's valid, McCain has managed to sell his military service as foreign-policy experience, and Obama has nothing equivalent to offer. That doesn't matter to me, but there certainly are voters to whom it does matter. And those are the voters Obama is concerned about. Obama is taking an unusually aggressive position regarding the number of states he is contesting. He is spending money in states long-considered safe bets for the GOP (like Montana and South Dakota) and challenging McCain in Southern states like North and South Carolina and Georgia. It's a risky play, one that I think is geared as much towards draining McCain's cash reserves as anything else. Obama may not even hope he's going to win these states, but allocating resources there forces McCain to do so, and those resources could otherwise have gone to true razor's-edge states like Ohio, Pennsylvania, Michigan and Florida. In order for this strategy to have any credibility, much less any chance of actually snagging some of these states for Obama, the security problem has to be addressed. Obama isn't going to back down on Iraq. He's modulated his language, and some specifics, but his core plan is the same it has been throughout the campaign. He isn't walking back from his opinion that the war was a mistake. He isn't softening his language against Bush. So he has a limited range of things which can be adjusted to increase his viability with red-state voters, independents, and swing-staters. The FISA vote may well have been part of his overall strategy of shoring up his security bona-fides. Obama knew the bill was going to pass without him, knew a filibuster wouldn't work, and looks like he decided not to make any useless gestures that would ultimately enhance the GOP's ability to paint him as soft. </div>One Drophttp://www.blogger.com/profile/00595350723609487252noreply@blogger.com