Outside the Beltway

FISA Reform Moves Forward, Netroots Angry at Obama

James Joyner · Thursday, June 26, 2008 · 8 comments

The Senate easily invoked cloture yesterday, ending a threatened filibuster of a major overhaul of the Foreign Intelligence Surveillance Act of 1978. The revised bill is expected to pass today.

This may be the most important bill we pass this year,” said Senate Intelligence Committee Chairman John D. Rockefeller IV (D-W.Va.), an architect of the bill crafted over four months of negotiations between congressional leaders and the White House.

The bill would require that the secret FISA court approve procedures for intercepting foreign nationals’ e-mails and telephone calls. Spying on U.S. citizens, including those overseas, would require individual warrants from the same court.

It also would establish the FISA law, and the secret court it created, as the final legal authority on government spying. House Speaker Nancy Pelosi (D-Calif.) and Sen. Barack Obama (D-Ill.), the party’s presumptive presidential nominee, have cited the exclusivity provision as the main reason they supported the bill. They said it is a rejection of President Bush’s stance that his wartime powers gave him authority to approve the defunct warrantless wiretapping program.

So far, so good. The sticking point, though, is that the bill would give retroactive immunity from civil suits to telecommunications companies that complied with Bush Administration requests to assist in electronic surveillance absent FISA warrants. As FDL’s Ian Welsh notes, “Obama and McCain were both absent, as was Clinton.” The only others not voting were Robert Byrd and Teddy Kennedy, both of whom are recovering from serious medical conditions. One presumes the others were off campaigning or fundraising — and wanting to escape and on the record vote.

This didn’t prevent Obama and Clinton from being criticized. Carrie Budoff Brown, reporting for The Politico:

Disappointed over his position on the Foreign Intelligence Surveillance Act, the online activists feel jilted and betrayed and have taken to questioning his progressive credentials. One prominent blogger, Atrios, has even given him the moniker “Wanker of the Day.”

“He broke faith,” said Matt Stoller, a political consultant and blogger at OpenLeft.com. “Obama pledged to filibuster, and he is part of that old politics, in this case, that he said he wasn’t. It will spur us to challenge him.”

The FISA debate marks the presumptive Democratic nominee’s first serious break from the liberal Netroots in the general election. He is still their candidate, but the FISA issue has reignited skepticism among major bloggers, who had largely pushed aside doubts about Obama when Edwards, their favored candidate, ended his bid in February.

Welsh says “This is a sad day, especially for those of us who believed Obama when he said he would support a filibuster against retroactive immunity.” More importantly, he correctly notes that yesterday’s was “the real vote” and that voting against the final bill, while it might fool “the rubes,” is meaningless.

Greg Sargent presents Obama’s explanation for why he reneged on his promise to “support a filibuster of an earlier version of the bill,” namely that, “My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people.” That’s a statement that will play well with most Americans, I think, even if it upsets the netroots.

And, indeed, Obama has correctly gauged that the latter is of peripheral consequence.

Still, the disillusionment goes only so far. The liberal blogosphere’s most recognizable name, Markos Moulitsas Zuniga, founder of Daily Kos, said Monday on MSNBC’s “Countdown With Keith Olbermann”: “Let’s be honest, it is either Obama or John McCain. So we really don’t have much of a choice.” At stake for Obama in the FISA vote is the intensity of support for Obama, Moulitsas said.

“I don’t want to hear him talk about leadership. I don’t want to hear him talk about defending the Constitution. I want to see him do it,” he said. “If he does, it will increase the intensity and level of support he gets from base Democrats. If he doesn’t, we may worry he is just another one of these spineless Democrats who are more afraid of controversy in doing the right thing than they are in actually doing the right thing.”

The intensity of outrage over telecom immunity continues to puzzle me. The core issue is finding a balance between 4th Amendment freedoms and the collection of intelligence necessary to prevent terrorist attacks. Ultimately, that means finding a way to get swift but real judicial oversight, preferably by people with a serious understanding of intelligence collection, to guard against executive zeal. The ability to retroactively sue phone companies, who complied with what they either thought were legitimate requests from the government to help go after the bad guys or simply feared alienating their regulatory overlords, has always struck me as a tertiary issue.