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Friday, July 11, 2008

Choose Your Adversaries Wisely

Earlier this week, the Senate passed a really lousy law. I mean a real dog. The sort of law that you usually only see in a police state. It's not as bad as the Alien and Sedition Acts, but pretty damned close. The FISA compromise bill is the sort of law that free people used to freak out about. Some free people still are.

Good on them.

American Civil Liberties Union, "ACLU Sues Over Unconstitutional Dragnet Wiretapping Law":

The American Civil Liberties Union filed a landmark lawsuit today to stop the government from conducting surveillance under a new wiretapping law that gives the Bush administration virtually unchecked power to intercept Americans' international e-mails and telephone calls. The case was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose ability to perform their work - which relies on confidential communications - will be greatly compromised by the new law.

The FISA Amendments Act of 2008, passed by Congress on Wednesday and signed by President Bush today, not only legalizes the secret warrantless surveillance program the president approved in late 2001, it gives the government new spying powers, including the power to conduct dragnet surveillance of Americans' international communications.


The ACLU had their suit all drawn up and ready to file the moment Bush signed the bill into law. While the issue of immunity (I'd call it amnesty, but more about that in a bit) for telecommunications companies who committed felonies has grabbed the attention of many, it's larger problem is that it's a near-elimination of any oversight to the National Security Agency's wiretapping program.

Glenn Greenwald cites Georgetown Law Professor Marty Lederman, who managed to sum it all up in one paragraph:

The new statute permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda -- indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.


I'd add that since the NSA doesn't have to prove a damned thing before they start a wiretap, even that tiny restriction about the "foreign location" is entirely theoretical. Bush and Congress have put what is essentially a police agency on the honor system. If they break the law, no one will ever know.

-Continued after the jump-


Disappointing many -- myself included -- Barack Obama, a constitutional lawyer, voted for this awful police state law. Some of the reactions to that vote are a bit overblown -- the bill would've passed regardless and people are acting as if Obama cast the deciding vote.

But just as disappointing, in my mind at least, is that Obama decided he could cast a vote that wouldn't make any difference in order to bolster his security bona fides. Politically, this is stupid, since the people he's hoping to mollify will expect this authoritarian crap all the time. It seems to me that voting against the FISA provisions would've been a zero risk proposition -- just talk about the telcom immunity to explain the vote. The only people who think that telecommunications companies absolutely must get immunity from lawsuits are right wing partisans who'd probably never vote for Obama in a million years. That was the way to address this issue -- it's an issue of crime. If someone were to criticize the vote, Obama could come back with the accusation that they were being tolerant of lawbreaking -- i.e., "soft on crime." After Enron, people don't like corporate criminals any more than they like street criminals.

But the deed is done. The question isn't whether or not it was a good idea, the question is "What happens now?" For me, I re-up to the ACLU and back the lawsuit. For others, the answer is -- somewhat counter-intuitively -- to back Obama.

"Barack Obama believes in the Constitution. He's a constitutional scholar. I believe that he will have a better chance to look at these powers that have been given to the executive branch, [even though] he'll be running the executive branch," says Senator Russ Feingold, a very vocal opponent of the bill. "I think he will understand and help take the lead in fixing some of the worst provisions."

I've found myself repeating more than once electoral lessons I've learned. One more time won't hurt any, there are only two that apply here. First, if you want a candidate who's going to do everything you want them to, you're going to have to run yourself -- that's the only way that's ever going to happen.

Second, given the previous fact, you're going to wind up voting for the adversary you'd most want to have. Ask yourself this; would you rather fight Barack Obama on a few things or John McCain on everything? It's a numbers game -- more fights means more losses. How often are you willing to lose?

Feingold's not the only one who believes that Obama's plan may be to revisit FISA as president. Former counsel to Nixon John Dean, a man I believe has found his path to redemption in being very critical of Bush in a "right on the money" way, spoke to Keith Olbermann on MSNBC's Countdown:

DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that is something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets up on the Senate floor and says, “I‘m keeping that option open.”

OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN: Exactly...


That's why I said earlier that it's not amnesty. And, as I also pointed out earlier, limiting your battles means limiting your losses. It may be that Obama voted for this because this window of opportunity was in danger of closing, that voting for immunity was a way to prevent amnesty.

Not that that makes me any happier about it. It was going to pass regardless and making a stand on principle would've held no political risk -- at least, the way I see it. Obama could've voted against this bill and still wound up in exactly the situation we're all in now. We're going to spend the rest of Bush's term with this law in place and giving Bush the benefit of the doubt, putting the NSA on the honor system, is foolish beyond all words. History has shown that the Bush administration is a little light on morally and ethically aligned people. If something can be abused, it will be abused. Right and wrong, legal and illegal, are foreign concepts to people who work in the White House.

Meanwhile, McCain's getting away with being a big backer of the bill, hypocritically being critical of Obama for voting for it, and just as hypocritically not showing up for the vote himself -- how important could McCain possibly think this bill is? The opportunism is as transparent as crystal.

Where do we go from here? The only direction we can -- forward. And the fight doesn't end in November. In fact, with democracy, the fight never ends. The idea that we can elect the perfect candidate and history will stop is pure fantasy. Fight now, fight after November, and fight long into the future. It's an absolute dead certainty that you'll be having that fight with either Barack Obama or John McCain -- a third party president is pie-in-the-sky delusion.

In fact, I'd argue that voting third party is pretty much counterproductive. I didn't used to think that, but giving it more thought, I do now. You need to think like a national campaigner -- if Barack Obama loses to McCain, Democrats aren't going to be "taught a lesson." No, if you're a national campaigner and you see a little handful of protest votes and a big block that voted for McCain, who are you going to aim for next time? If McCain wins, the "centrist Democrats" win the argument one more time and the party gets yanked even further to the right -- history shows that the more Democrats lose, the more they resemble Republicans. Vote third party and you're guaranteed to be discounted. Worse, you move the nation closer to a one-party system.

So here's your choice; McSame or Obama. Who would you rather have your fights with?

-Wisco

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