What we learned in December, 2005 that George Bush and the telecoms were doing -- listening in on the private conversations of American citizens without warrants -- is a felony under clear U.S. law, punishable by up to 5 years in prison and/or a $10,000 fine for each offense. Anyone can go read the section of FISA -- right here -- that says that as clearly as can be:
A person is guilty of an offense if he intentionally -- (1) engages in electronic surveillance under color of law except as authorized by statute; . . . An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
It was also as clear a violation of the Fourth Amendment as can be. For the Government to invade our communications with no probable cause showing to a court is exactly what the Founders prohibited as clearly as the English language permitted.
But today, the Democratic-led Congress -- with the support of both John McCain and Barack Obama, neither of whom will even bother to show up and vote -- will cover-up those crimes. Law Professor and Fourth Amendment expert Jonathan Turley was on MSNBC's Countdown with Rachel Maddow last night and gave as succinct an explanation for what Democrats -- not the Bush administration, but Democrats -- will do today. Anyone with any lingering doubts about what is taking place today in our country should watch this:
As Turley says, and as I've written many times over the last two weeks, what is most appalling here beyond the bill itself are the pure falsehoods being spewed to the public about what Congress is doing -- and those falsehoods are largely being spewed not by Republicans. Republicans are gleefully admitting, even boasting, that this bill gives them everything Bush and Cheney wanted and more, and includes only minor changes from the Rockefeller/Cheney Senate bill passed last February (which Obama, seeking the Democratic Party nomination, made a point of opposing).Rather, the insultingly false claims about this bill -- it brings the FISA court back into eavesdropping! it actually improves civil liberties! Obama will now go after the telecoms criminally! Government spying and lawbreaking isn't really that important anyway! -- are being disseminated by the Democratic Congressional leadership and, most of all, by those desperate to glorify Barack Obama and justify anything and everything he does. Many of these are the same people who spent the last five years screaming that Bush was shredding the Constitution, that spying on Americans was profoundly dangerous, that the political establishment did nothing about Bush's lawbreaking.It's been quite disturbing to watch them turn on a dime -- completely reverse everything they claimed to believe -- the minute Obama issued his statement saying that he would support this bill. They actually have the audacity to say that this bill -- a bill which Bush, Cheney and the entire GOP eagerly support, while virtually every civil libertarian vehemently opposes -- will increase the civil liberties that Americans enjoy, as though Dick Cheney, Mike McConnell and "Kit" Bond decided that it was urgently important to pass a new bill to restrict presidential spying and enhance our civil liberties. How completely do you have to relinquish your critical faculties at Barack Obama's altar in order to get yourself to think that way?The issues implicated by this bill -- government spying, lawbreaking, manipulation of national security claims for secrecy and presidential power, the extreme privileges corporations inside Washington receive -- have been at the very heart of progressive complaints against the Bush era for the last seven years. The type of capitulation and complicity which Jay Rockefeller and Steny Hoyer embraced is exactly what progressives have spent the last seven years scathingly attacking.
All of that magically changed for many people -- by no means all -- the day that Obama announced that he supported this "compromise," when these issues were suddenly relegated to nothing more than inconsequential, symbolic distractions, and complicity with Bush lawbreaking magically morphed into shrewd pragmatism. It's the same rationale that the dreaded Blue Dogs have been using since 2001 to justify their complicity which is now pouring out of the mouths of Obama defenders (we need to win elections first and foremost, and can only do that if we don't challenge Republicans on National Security and Terrorism).
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Stanford Professor Larry Lessig has been a hard-core Obama supporter since before the primaries even began. He knows the candidate himself and has all sorts of contacts at high levels of the campaign. Yesterday, Lessig wrote a scathing criticism of what the Obama campaign has been doing over the past several weeks: "All signs point to an Obama victory this fall. If the signs are wrong, it will be because of events last month." This is what Lessig said about the Obama campaign's attitude towards the FISA bill:
Yet policy wonks inside the campaign sputter policy that Obama listens to and follows, again, apparently oblivious to how following that advice, when inconsistent with the positions taken in the past, just reinforces the other side's campaign claim that Obama is just another calculating, unprincipled politician. The best evidence that they don't get this is Telco Immunity. Obama said he would filibuster a FISA bill with Telco Immunity in it. He has now signaled he won't. When you talk to people close to the campaign about this, they say stuff like: "Come on, who really cares about that issue? Does anyone think the left is going to vote for McCain rather than Obama? This was a hard question. We tried to get it right. And anyway, the FISA compromise in the bill was a good one."
So the highest levels of the Obama campaign believe this bill is "a good one." Lessig adds that the perception of Obama's craven, nakedly calculating behavior as illustrated by his support for the FISA bill is by far the largest threat to his candidacy as it "completely undermine Obama's signal virtue -- that he's different":
The Obama campaign seems just blind to the fact that these flips eat away at the most important asset Obama has. It seems oblivious to the consequence of another election in which (many) Democrats aren't deeply motivated to vote (consequence: the GOP wins).
I can't count the number of emails I've received demanding that I stop criticizing Obama for his support of this bill on the ground that such criticisms harm his chances for winning -- as though it's the fault of those who point out what Obama is doing, rather than Obama himself for completely reversing his position, abandoning his clear, prior commitments, and helping to institutionalize the destruction of the Fourth Amendment and the concealment of Bush crimes.
Ultimately, it's the sheer glibness of the support for this corrupt and Bush-enabling bill among Obama and his supporters that is most striking. Revealingly, Lanny Davis -- a pure symbol of everything that is rotted and broken in our political culture -- wrote an Op-Ed yesterday lavishly praising Obama for his support of the FISA bill on the ground that it "provided the senator an important chance to demonstrate his 'Sister Souljah moment.'" Beltway operatives like Davis can only understand the world through the prism of this finite set of clichÃƒ©s -- Stand up the Left. Sister Souljah. Move to the Center. That's the same oh-so-sophisticiated political analysis one finds everywhere to justify what Obama is doing. As Dan Larison put it yesterday:
In Obamaworld, apparently wrecking the Fourth Amendment is roughly equivalent to ridiculing some obscure rapper. The only thing more depressing than the conceit that supporting unconstitutional measures is a way to "signal" to swing voters that you are not a radical loon bent on "ideological purity," which is basically to make defending the Constitution a position held only by radicals and extremists, is the dishonest representation of support for the compromise legislation as being a pro-civil liberties position.
John Nichols of The Nation -- one of the most pro-Obama media organs in the country -- pointed out yesterday that Obama won the critical Wisconsin primary in large part by holding himself out to Democratic voters there -- for whom civil liberties is a vital issue -- as a steadfast ally of Feingold on these issues:
Before the February 19 Wisconsin primary, which confirmed his front-runner status in the race for the Democratic presidential nomination, Illinois Senator Barack Obama went out of his way to associate his candidacy with the name of Wisconsin Senator Russ Feingold. . . . Obama wanted to secure the support of the substantial portion of Democrats nationally who, in polls conducted in 2006, indicated that they would back Feingold if he entered the presidential race. Internal polls by the various campaigns indicated that Feingold drew as much as 15 percent of the vote in a number of key states, coming mostly from anti-war and pro-civil liberties progressives. . . .
"I am proud to stand with Senator Dodd, Senator Feingold and a grass-roots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty," declared Obama, who indicated that he would support efforts to filibuster any attack on the ability of citizens to use the courts to defend their privacy rights.
Obama's stance helped him. It was cited in endorsements by prominent progressives and newspapers in Wisconsin and other later primary states. No doubt, it contributed to his landslide victory in the Badger State, where the Illinoisan won a vote from Feingold himself.
Yet, now that he is the presumptive nominee, Obama is standing not with Feingold, but with Bush and the special interests Obama once denounced. He says he'll vote for a White House-backed FISA rewrite -- which is likely to be taken up by the Senate this week -- in opposition to the position taken by civil liberties groups, legal scholars on the left and right and, of course, Russ Feingold.
Who can justify that?
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Ultimately, what's most amazing about all of that is that -- as Senate Intelligence Committee member Russ Feingold pointed out yesterday -- even the vast majority of the Congress, let alone Obama apologists, have no idea what these spying programs even entail or how they work. As someone who isn't on the Intelligence Committee, does Obama even know?
Either way, here's what the ACLU's Caroline Fredrickson wrote to The Washington Post yesterday in response to Fred Hiatt's latest Editorial praising Obama and the FISA bill:
The fact is that the revisions of the Foreign Intelligence Surveillance Act under consideration in the Senate this week would virtually do away with the role of the FISA court in overseeing new dragnet surveillance. Its role would be reduced to little more than serving as a rubber stamp. It is a shame that the paper that uncovered the Watergate scandal, which helped lead to more congressional oversight of executive authority and the checks and balances of FISA, now believes that the president once again should have unfettered power to spy on Americans.
Sen. Feingold -- who, as a member of both the Senate Intelligence and Judiciary Committees, probably knows as much about the NSA program as any member of Congress -- added:
The government absolutely must be able to wiretap suspected terrorists to protect our security, and every member of Congress supports that. With this bill, however, for the first time since FISA was adopted 30 years ago, the government would be authorized to collect all communications into and out of the United States without warrants. That means Americans e-mailing relatives abroad or calling business associates overseas could be monitored with absolutely no suspicion of wrongdoing by anyone. This bill overturns the laws and principles that have governed surveillance for the past 30 years.
The San Fransisco Chronicle editorialized today:
Warrantless wiretapping of Americans should outrage Congress into banning the practice. But, in a display of political expediency, the Senate is about to bless it, following a similar cave-in by the House last month.
Making matters worse, both likely presidential candidates -- Sens. Barack Obama and John McCain - plan to reverse their opposition and vote for the White House-backed rewrite of the Foreign Intelligence Surveillance Act. The bigger of the two reversals is Obama, who earlier this year had promised a filibuster to defeat the bill.
These are just facts -- facts about Barack Obama, the FISA bill he supports and which the Democratic Congress will approve today. Recall that James Comey testified last year that what he and other DOJ officials learned in 2004 about Bush's spying activities for the several years prior was so extreme, so unconscionable, so patently illegal that they all -- including even John Ashcroft -- threatened to resign en masse unless it stopped immediately. We still have no idea what those spying activities were. We know, though, that even the right-wing DOJ ideologues who approved of the illegal "Terrorist Surveillance Programs" that we know about found those activities indisputably illegal and wrong. But Barack Obama and the Democratic-led Congress will today enact a bill to immunize all of that, to protect the lawbreakers who were responsible.
As I've said many times before, there are clear differences between an Obama and McCain presidency. Denying that is just as irrational as those for whom the only political rule is Thou Shalt Not Speak Ill of Obama.
But it's equally clear that politicians like Obama are unable within the prevailing political establishment to do much to stop the continued growth of the lawless surveillance state and our two-tiered system of justice, even if they wanted to stop it, even if they were willing to expend political capital to take a stand against it. And Obama -- with his support for this wretched assault on the Constitution and the rule of law -- is demonstrating that, contrary to his many prior statements, these issues are anything but a priority for him (Larry Lessig: Obama aides say "the FISA compromise in the bill was a good one"). Differences between Republican and Democrats exist and are important in many cases, but those differences are often dwarfed by the differences between those entrenched in and dependent upon the Washington Establishment and those -- the vast, vast majority of American citizens -- who are not.
UPDATE: The Savannah Morning News has an article on the ads running against Democratic Rep. John Barrow.
The vote on the Dodd-Feingold-Leahy amendment to remove telecom immunity from the bill is taking place now. I will post the vote total and details as soon as it is done.
UPDATE II: The Dodd-Feingold amendment to remove telecom immunity from the bill just failed by a vote of 32-66. I was mistaken about Obama's not showing up to vote (that was the case, as I understood it, when the vote was scheduled for yesterday). He is in the Senate and, as he said he would, just voted (along with Hillary Clinton) in favor of the amendment to remove telecom immunity from the bill.
From listening, these are the Democrats who have voted in favor of removing immunity from the bill: Akaka - Baucus - Biden - Bingaman - Boxer - Brown - Byrd - Cantwell - Cardin - Casey - Clinton - Dorgan - Durbin - Feingold - Harkin - Inyoue - Kerry - Klobuchar - Lautenberg - Leahy - Levin - Mendenez - Murray - Obama - Reed - Reid - Sanders (I) - Schuemer - Stabenow - Tester - Whitehouse -Wyden.
Every Republican voted against removing immunity (including Arlen Specter, who spent all day arguing against immunity). Democrats voting against removing immunity: Bayh - Carper - Conrad - Feinstein - Johnson - Kohl - Landrieu - Lincoln - McCaskill - Mikulski - Nelson (FL) - Nelson (Neb.) - Pryor - Rockefeller - Salazar - Webb. Specter's amendment is next (to ban immunity if the spying was unconstitutional). Then they will vote on the Bingaman amendment (which I wrote about yesterday). They will both fail, and then they will vote on the final bill in its unchanged form.
UPDATE III: Specter's amendment -- merely to require the court to determine the constitutionality of the NSA spying program and condition immunity on a finding of constitutionality -- just failed 37-61. Obama voted in favor of the amendment, and Specter was the only Republican to do so.
All Republicans voted against, and these were the Democrats voting against: Bayh - Carper - Johnson - Landrieu - Lincoln - Mikulski - Nelson (FL) - Nelson (Neb.) - Pryor - Rockefeller - Salazar. [NOTE: I'm recording these roll calls from watching the proceedings, and so it's unlikely there are some errors and omissions. I will correct them as they are brought to my attention and will link to the official roll call vote once it is available. The Bingaman amendment is next.
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.