After vowing in January to filibuster any FISA bill that included retroactive immunity for telecommunication companies, Obama changed his mind, voting on Wednesday for a FISA bill that included immunity. Obama was one of 22 Democratic Senators who voted for the bill, while Senator Clinton and Majority Leader Reid voted nay. In the lead up to the vote Obama supporters started an organization called “Please Vote NO on Telecom Immunity-Get FISA Right”, which became a movement to get Senator Obama to stick to his word. Obama responded with an open letter to his supporters, stating that the compromise FISA bill improves on earlier versions and guarantees better oversight of executive privilege. Michael Ratner, from the Center on Constitutional Rights, doesn’t believe that Obama accurately characterized the implications of the bill he voted into law.
GEORGE W. BUSH, US PRESIDENT: Today the United States Congress passed a vital piece of legislation that’ll make it easier for this administration and future administrations to protect the American people.
MATTHEW PALEVSKY, JOURNALIST, TRNN: Fifteen months of heated debate in Congress came to an end on Thursday when the Foreign Intelligence Security Act, or FISA, was signed into law by President Bush. The bill that passed the Senate on Wednesday by a vote of 69 to 28 included the controversial amendment that provided immunity for telecommunication companies that cooperated with the NSA’s warrantless wiretapping program. The FISA debate was especially bitter for Democrats, who were split on the issue. A coalition led by senators Feingold and Leahy spoke out strongly against the bill.
SEN. RUSS FEINGOLD (D-WI): In a Democrat-controlled Congressa Democrat-controlled Congress!not only did we pass the Protect America Act, but we’re now about to extend for more than four years these expansive surveillance powers, and we’re about to grant immunity to companies that are alleged to have participated in the administration’s lawlessness.
SEN. PATRICK LEAHY (D-VT): As it is now, the bill would have the effect of ensuring that this administration is never called to answer for its actions, never held accountable in a court of law. I do not support a result that says the president of the United States, whoever he is, is above the law, and therefore I don’t support the bill unless it is amended.
The FISA bill has been heralded as a triumph for the Bush administration and a serious loss for the Democratic Party, especially Senator Obama, who in January, during the full swing of the Democratic primary, vowed to filibuster any bill that included retroactive immunity for telecommunication companies. Obama reneged on this promise, instead voting in favor of FISA. Investigative journalist Bob Parry describes the political calculation behind Obama’s flip flop.
ROBERT PARRY, JOURNALIST, CONSORTIUMNEWS.COM: For Senator Obama and others in the Democratic congressional leadership, this does give them some protection. If there is some kind of terrorist incident between now and the election, they can say that they gave the administration pretty much what it wanted regarding its ability to intercept communications from abroad to the United States and vice versa. But what this does, essentially, politically, is it means that it takes it off the table should there be some kind of incident. It does, however, undermine Obama with some of his supporters in the Democratic base who see this as an important issue of principle, the protection of the Fourth Amendment, and they see this, his voting with the administration on this, as somewhat of a betrayal.
PALEVSKY: Majority leader Harry Reid’s vote against FISA suggests a schism within the Democratic Party. But Parry believes that both Senators did their part to ensure the bill’s passage.
PARRY: So, then, while the Senate leadership did vote in some cases against the bill, there was a general acceptance that the bill should pass. If Senate majority leader Reid had truly opposed this bill, he could have stopped it and prevented it from going through. But there wasn’t that kind of a commitment on the Democratic side.
PALEVSKY: Obama’s vote inspired outrage from his supporters. In late January, a group called Please Vote Against FISA was started on Barack Obama’s social networking site. Two weeks later, it became the largest group on barackobama.com, with over 25,000 members, and had created a spin-off campaign called Get FISA Right. On July 3, Obama addressed the outrage within his own ranks in an open letter posted on his website and on The Huntington Post saying, “This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power.” (Barack Obama, July 3, 2008.) He goes on to say, “The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court.” Michael Ratner, from the Center for Constitutional rights, takes issue with hiding behind the exclusivity provision.
MICHAEL RATNER, PRESIDENT, CENTER FOR CONSTITUTIONAL RIGHTS: Some of the Democrats and others who have supported this bill are saying it’s the best we can do, and wrap themselves in the oversight provisions of the bill, which may be slightly better than the earlier bill. But the problem is that this bill has huge holes, gaping holes, that allow warrantless wiretapping with very little or no supervision. And that takes away, really, the efficacy or usefulness of any of the so-called oversight provisions. So, for example, I can give you a couple of those. One is it allows seven-day emergency wiretapping without any kind of warrant. And that emergency wiretapping continues when the US government goes into the secret court and continues while appeals are pending and everything else in a secret court. So, literally, you can be wiretapping American citizens for months, if not longer, without any kind of warrant.
PALEVSKY: Obama also emphasized his support of an amendment that would have taken retroactive immunity out of the FISA bill. But with only 32 votes, the amendment failed to pass. In his open letter, Obama also defends his vote by vowing that once he’s president, he will have his attorney general, quote, “conduct a comprehensive review of all our surveillance programs and to make further recommendations on any steps needed to preserve civil liberties and prevent executive branch abuse in the future.” Ratner takes issue with this promise as well.
RATNER: I mean, we’re talking about, you know, a fantasy here. The forty cases that are pending are all civil cases, because in the United States people can’t bring criminal caseswe’re not allowed to start a criminal case, as you can in some countries in Europe. So all the civil cases are most likely going to go down. There is an argument you can make that this legislation is unconstitutional, because what it does is it interferes with separation of powers in a court decision. But apart from that, what this legislation clearly does is wipe out civil cases completely. As to criminal cases, criminal cases can only be carried out by the prosecutor, by the United States attorney. So you have to ask yourself: is any president going to allow a US attorney to go after the former administration criminally when we’ve now passed a bill basically immunizing the excesses that were done before? And “unlikely” would be a mild way of saying that that’s going to happen. Obama’s claimed that he’ll get someone to investigate it. It’s just like every other commission, every other president who’s ever said, “I’ll get it to a commission, let them look at it, and see what happens.” I don’t think anything will come up of the criminal aspect that is still allowable under this bill. But the reason they didn’t have to immunize the criminal aspect is they know that no president, whether it’s Obama or McCain who wins the next election, is going to start some kind of criminal proceeding against Bush and company.