Admittedly, I haven't followed this that closely, but reading some analysis, it would appear that the compromise adds protections to existing law that weren't there before. Owen Kerr concurs:
As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.
So is the hue and cry on the bloggy left simply over the fact that this is seen as a victory for Bush and Obama aided and abetted? Because on substance this seems like a tempest in a teapot. If you think the government shouldn't be wiretapping individuals at all, you won't be happy with this compromise, but it would seem it moved current law a little back towards the privacy end of the spectrum, which is better than nothing. Given a repeal of the Protect America Act is not going to pass it would seem supporting this compromise is a pragmatic position.
I've been arguing with my friends on the right that Obama comes at things from the left but that he is in the end a pragmatic politician. I don't think you can read Audacity of Hope and come to any other conclusion. His support of the compromise confirms this analysis.
Again, I don't understand the outrage. What am I missing?
5 comments:
The fact that the act in question conferred retroactive immunity on a lot of big corporations who broke the law, for one. The fact that it guts the Fourth Amendment, for another. And yeah, the fact that Obama gutlessly and stupidly flip-flopped at the last minute in a pointless attempt to ward off attacks that the RNC will still make on him. He knew what the right vote on that bill was, and he didn't have the guts to make it at the last minute.
That may qualify for pragmatic politics (though I have doubts on that score as well). But it doesn't sit well on a guy whose whole campaign is based on his being an agent for change, someone who isn't dialed in to politics-as-usual.
The most important thing you missed was that the Protect America Act *wasn't* current law. It expired in February. The FISA Amendments Act was a (mostly successful) attempt to revive it. Both, like with the PATRIOT Act, were blatantly unconstitutional.
I'm not there yet. I don't see it as unconstitutional as the compromise would require the FISA court to rule on a wiretap's fourth amendment compliance as applies to US citizens which is farther than the Protect America act went, and that is a good thing.
True enough, it grants immunity to the bells who aided the Bush admin in breaking the law. Some -- apparently Obama included -- felt getting the additional privacy guarantees in the new law were worth that trade off. You disagree, fine, but this may be a case of the perfect not defeating the good.
Finally, the original FISA act was still on the books before this compromise -- do you advocate its repeal? What degree of surveillance and intelligence gathering is acceptable? The 1978 version? Or do we need to update to make a more flexible system -- one that has a court, not the president, rule on 4th amendment concerns -- to reflect the fact that communication technology has evolved in the last 30 years.
The "F" in FISA stands for "Foreign," Scott. "Foreign Intelligence Surveillance Act of 1978." I don't have a problem with my government engaging in covert surveillance of foreign nationals where there is probable cause to believe that they are engaging in activities that are detrimental to our national security. The original FISA provided for a secret court where the government could go to present evidence that (a) probably would not meet the standard of proof in a civil proceeding, (b) couldn't be used in open court without tipping our hand, and (c) would reveal to people who shouldn't know it what our methods and sources for gathering intelligence are. It lets the government set up surveillance on a suspect quickly, and still keep him/her in the dark. They can even start the surveillance and then get the warrant afterwards, as long as the panel of judges (not the pretzelnit: that was another thing the Busheviki changed on a whim and got away with) feels their evidence is good enough. And all of that is fine.
What is not fine, and what absolutely does undermine the Fourth Amendment, was the way in which the Bush administration used FISA and other means that were never intended for domestic spying to spy on American citizens, illegally, in the aftermath of September 11. And Obama just voted to grant immunity to the administration and to the telecommunications firms that knowingly helped it break the law.
Accidentally posted this to the wrong post. But here's my response on this topic:
Immunity = bad; extending 4th amendment protections to americans abroad the govt wants to surveil = good.
I agree its a mixed bag, hence the word compromise.
But I think your outrage has more to do with the Bush administration getting away with this than the substance of the measure on civil rights grounds. I think the Bushies will get their comeuppance in other ways.
It's time to turn the page.
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