Supporters scold Obama as he attempts to defend his position on FISA

Barack Obama has posted an explanation of his position on the FISA bill on his website, in response to a growing sense of outrage among his netroots supporters over his stated intention to vote for the bill. Many see it as a flip flop on his previous position to not support any bill that would grant retroactive immunity to large telecommunications corporations that cooperated with the Bush administration’s illegal spying on American citizens.



What exactly is FISA, and what is all this controversy about?



The Foreign Intelligence Surveillance Act was created in 1978 in response to the Nixon administration’s spying on the activities of domestic political groups. The intent of FISA is to protect the civil liberties of American citizens while allowing for covert surveillance of foreign entities and individuals. Basically, it allows spying without a warrant for up to a year unless such spying involves United States citizens. In those cases, a warrant is required. The Patriot Act of 2001 extended the scope of these secret surveillance operations to groups not backed by a foreign government, which many at the time predicted would lead to abuses of American civil liberties.



In the intervening years, it’s come to light that the Bush administration vastly overstepped its boundaries and began spying on American citizens, aided by major telecommunications companies. According to the New York Times article that exposed the practice, the Bush administration said it only monitors international phone calls or emails of targeted people within the United States, but if those same people made calls solely within the U.S., the government would seek a warrant. The president argued, essentially, that it was within his authority to conduct such activities given his mandate by the Congress and the American public to conduct a war on terror.



The ensuing controversy saw multiple competing Senate bills in 2006, with a final law, the Protect America Act, passing in 2007 that made warrantless wiretapping legal if the communications began or ended on foreign soil, even if on one end of the communication was an American citizen.



The current bill under question would restore the authority of the FISA court on all surveillance activities directed at American citizens, requiring warrants. But it would also grant retroactive immunity to the telecom companies that are threatened with a number of lawsuits that allege their cooperation with the Bush administration was illegal.



Obama has previously stated that he would never support a bill that included retroactive immunity. You can see a timeline of his statements clearly and forcefully stating this position on Talking Points Memo, showing why many think his current position is a flip-flop. After repeated assertions that he would not support retroactive immunity, Obama said in January:

I strongly oppose retroactive immunity in the FISA bill.

 

Ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand. … No one should get a free pass to violate the basic civil liberties of the American people — not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed.

 

That is why I am co-sponsoring Senator Dodd’s amendment to remove the immunity provision. Secrecy must not trump accountability. We must show our citizens – and set an example to the world – that laws cannot be ignored when it is inconvenient.

Obama’s current position



After the House passed the current bill, which will be taken up in the Senate next week, Obama explained his intentions to vote for it on June 20:

After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year’s Protect America Act.

 

Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President’s illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses.

And on June 25th he said in a press conference that the issue of the telephone companies doesn’t trump the security interests of the United States.





Uproar among the Netroots



The progressive base of the Democratic party, which has a strong and visible presence on the Internet, is firmly opposed to the FISA bill due to the immunity it grants the telecom companies. At the core of this objection is a deep-seated belief that what the companies did was in violation of the Fourth Amendment, which protects "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."



It’s this same progressive base that deserves a lot of credit for driving those fabled small campaign contributions to the Obama campaign, especially when he became the candidate of choice after John Edwards dropped out of the primary race. When Obama announced his intention to vote for the bill, the online "netroots" of the progressive wing launched into organizing to persuade him otherwise. And they did it on his own social networking website. The Nation has an interesting description of how this happened, so far the largest group on Obama’s site is the anti-FISA bill group–which is opposed to Obama’s own position.



Democracy for New Mexico is one of our best homegrown examples in New Mexico of the progressive Democrat netroots in action. A site maintained by Albuquerque Democrat Barbara Wold, DfNM is one of the most well-read blogs in the state, and Wold has been both a staunch supporter of the Obama campaign, and a staunch opponent of the FISA bill. She was also selected as New Mexico’s official state blogger, to join the Democratic delegation on the floor of the Democratic Party convention in Denver. Her post, Hey Barack, Listen Up is a good representation of the kind of push back Obama is receiving online. Barb writes:

How could any Democrat vote for such a constitution-shredding bill? Ask Senator Obama — if he follows through with his stated intention to vote for the FISA bill with or without telecom immunity. Despite his campaign’s previous statement that he’d support a filibuster of any bill that contained retroactive immunity, Obama suddenly seems to believe that the dangers of terrorism justify throwing our privacy rights and laws in the trash can. Can anything be farther from the truth or sound more like a Bush-Cheney-McCain punchline? Is Obama really no better than the likes of Rep. Steny Hoyer, who pushed this bill on the House side?

As she continues, she broadens her criticism to include other Obama statements in recent days that indicate he’s making a move to the right of center. Her post also demonstrates the type of online activism that has greatly bolstered Obama’s campaign over the past year:

I can’t imagine any of us abandoning the nominee based on his wrong-headed FISA vote, his unnecessary criticism of Wesley Clark’s reasonable remarks about McCain or other similar disappointments, but it sure would make it harder to nourish a healthy sense of enthusiasm for the work that’s ahead. Or to dig deep to donate generously to his campaign.

Is Obama willing to risk that in order to try and avoid criticism from the fearmongering hyenas of the punditry and the right? Hasn’t he learned the most important lesson we’ve learned from what we’ve endured over the past decade or more? The hyenas will attack in the very same way whether Obama toes their line or not.

 

We know this. Why doesn’t Obama? Maybe he’ll start getting the picture from what’s become the fourth-largest group on my.barackobama.com. “Senator Obama­ Please Vote NO on Telecom Immunity –­ Get FISA Right” is five days old and growing fast. Their mission statement says: “We are a proud group of your supporters who believe in your call for hope and a new kind of politics. Please reject the politics of fear on national security, vote against this bill and lead other Democrats to do the same!” Click here to join the group, which currently has more than 9,600 members. And read this by one of the folks who started the group. Here’s a wiki that makes it easy to take action.

 

Much will be revealed next week. As Feingold says in the video, "I teased some of my colleagues and said we can celebrate the Constitution on July 4th and maybe when we come back you’ll decide not to tear it up." Get it, Barack? Get it, Sen. Bingaman?

In the explanation that he posted today on his website, to clarify his FISA position to his own most ardent supporters, Obama said he wouldn’t have drafted the bill as currently written, acknowledging that it grants retroactive immunity to telecommunications companies "…that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses."



He then said this is why he supports "striking Title II from the bill" and indicates he’ll work with "Chris Dodd, Jeff Bingaman and others" to remove that provision. Nevertheless, he said he will support the current bill, despite its imperfections:

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I’m persuaded that it is necessary to keep the American people safe — particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I’ve chosen to support the current compromise. I do so with the firm intention — once I’m sworn in as President — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

Obama also said he understands why "some of you feel differently" and that he’s "happy to take my lumps on this side and elsewhere." He also praised his activist base for making the bill better through their ongoing activism on the FISA issue, saying that the new and improved compromise bill has much to do with the "active and sustained engagement of American citizens."



He goes on to talk about community organizing and accountability, and said he expects to be held accountable:

I learned long ago, when working as an organizer on the South Side of Chicago, that when citizens join their voices together, they can hold their leaders accountable. I’m not exempt from that. I’m certainly not perfect, and expect to be held accountable too. I cannot promise to agree with you on every issue. But I do promise to listen to your concerns, take them seriously, and seek to earn your ongoing support to change the country.