FISA Reform Moves Forward, Netroots Angry at Obama

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.

FILED UNDER: Campaign 2008, Congress, Intelligence, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Bithead says:

    So lemme understand this.
    The nutroits are all bent outta shape with Obama.
    They’re all bent outta shape with congressional Democrats.

    Hmm.
    Does this mean they’re going to do America a favor and not vote for ’em?

    (Crickets)

    I didn’t think so.

  2. Bithead says:

    Added thought;

    The intensity of outrage over telecom immunity continues to puzzle me.

    Really? I should think it simple; That bill as such takes away a weapon the far left might have used against the hated BooooshhhhhChecneyHiterManster. Oh, and of course let’s remember the assocation of the left with the ATLA. A lot of lawers missed out on a lot of lawsuit work when this bill passed.

  3. Dave Schuler says:

    even if it upsets the netroots

    It’s a condition they’d best get used to. I think they’ll find President Obama a great disappointment to them. He won’t be nearly as radical as they hope, not even as radical (which is not very) as he was during the primary campaign.

  4. Hal says:

    Dave, I think you’ll find that you’re portrayal of the Obama supporters is rather naive. Most of us lived through 2000 and understand quite well that he’s a politician first and not the great political messiah.

    But we’ve learned a number of lessons from Karl Rove and the Grover Norquist 10 point plan for party discipline. What you see as a “great disappointment” is actually disappointment, but the reaction of the netroots is more akin to how the right has been dealing with their own moderates.

    Perhaps what scares the right most of all is that we’re learning some of the same effective tactics and strategies that y’all on the right have been employing. And even more terrifying is that we seem to be having measured success and not losing elections because of it.

    In the words of Norquist: Bwaaaahahahahahahahaahaha <lightning crash>

  5. sam says:

    From The President’s Analyst:

    James Coburn: Everyone hates the phone company.

  6. Bithead says:

    Dave, I think you’ll find that you’re portrayal of the Obama supporters is rather naive. Most of us lived through 2000 and understand quite well that he’s a politician first and not the great political messiah.

    No, I think Dave’s got it pretty well nailed, actually.

  7. Hal says:

    No, I think Dave’s got it pretty well nailed, actually.

    Coming from you, that actually means the opposite.

    Thanks for the confirmation!

  8. Michael says:

    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.

    Well we cant pre-emptively sue them, we have to wait until they actually did something wrong.

    The intention was never to punish the phone companies, it was a means of determining who was instructing the phone companies to break the law, whether or not that person knew they were asking them to break the law, and whether or not the telephone companies were told they were breaking the law.

    It was an end-run around the Administrations use of “executive privilege” to stop investigations of the Executive Branch.