Countdown - Special Comment, FISA and Barack Obama

Congratulations, Glenn Greenwald. Glenn Greenwald challenged both Barack Obama and Keith Olbermann over this FISA legislation. The bottom line, as Glenn pointed out, was that Barack Obama stood firmly against immunity for the telecom companies during the primaries. Now that he is one step away from the White House, he appears to be playing politics, and backing off from this pledge.

Keith Olbermann did his homework, or rather, he had John Dean do his homework for him. Over the weekend, John Dean not only read the FISA legislation also looked at related statutes. He concluded that the telecom companies would be immune from civil lawsuits but not from criminal prosecution. Therefore, Barack Obama can vote for the FISA legislation and still pledge to prosecute any criminal activity of the telephone companies. This would be something. But for me, I would like to see Barack Obama say no telecom immunity. No! Then, follow up with a pledge that if criminal wrongdoing is found he would instruct the attorney general to prosecute.

With John McCain cranking up the rhetoric on Barack Obama's campaign-finance "flip-flop," I think it is important that he (Obama) takes a stand on principle. The Republicans are going to do what they're going to do (lie and distort). Therefore, it is critical for Barack Obama to decide where he's going to stand in this election.

Congratulations to Glenn Greenwald (Glenn's Olbermann posts - here and here. Glenn's original post on FISA and Obama here.) It is rare for a blogger to have any influence of the world on which he blogs. Glenn's arguments are thoughtful and well researched. It is very hard to argue with Glenn... and win.

Congress Passes New FISA Bill, Weakens 4th Amendment

New Law Does Not Restore the Original 1978 FISA Principles

The Congress has handed the White House sweeping new powers in the new FISA Bill. Proponents of the Bill claim that it is a victory because the legislation prevents the White House from engaging in warrantless spying, by placing wiretapping activities back under the jurisdication and oversight of FISA courts. However, that is not actually what the Bill has done. The new law is actually a re-write of the original 1978 FISA law, which gave clear oversight to FISA Courts. The original law was much more stringent in terms of probable cause requirements, and had more provisions for protecting the rights of Americans. Under the original law, surveillance requests were reviewed on a case-by-case basis.

The new re-written FISA law does not require any detailed Court oversight. It would not prevent the White House from engaging in warrentless wiretapping in the future.

In a strange twist, Sen. Arlen Specter, R-Pennsylvania, sparred with Pelosi over the extraordinary powers the Democrats’ bill grants to the White House, saying the legislation does not appear to prevent the White House from initiating surveillance without a court order.

“This proposal dodges" that, Specter said

This is at least the third time that the Democrats have caved on a major piece of legislation related to the fundamental rights of Americans. They are referring to their caving as a "compromise". But the only thing that they have compromised is the 4th Amendment of the Constitution. We may as well throw that amendment out of the window. Why not shred the entire Bill of Rights too? It has been decades since the Federal government has really honored the Constitution anyway.

From the Moderate Voice:

This is the same doublespeak we got from Nancy Pelosi. This — “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.” — is technically true, but only because the bill changed FISA to give the president the powers he wants, minus the accountability he does not want. In other words, the House has enshrined the president’s entire illegal warrantless surveillance program in law, called it “FISA,” and now has the chutzpah to claim that the bill “restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance.”

Ironically, a Federal appeals Court ruled last week that employers could not spy on the e-mails and text messages of employees. Either we have two separate Constitutions, or the Congress is hoodwinking the American public once again.

I'm not soft on Terrorism. I believe that Intelligence agencies need provisions that will allow them to do their work. However, I believe such provisions should be reasonable. The 1978 FISA law was created as a tool for gathering intelligence. Yes, the original law was outdated and didn't allow enough flexibility. Fair enough. But it could have been adjusted to provide Law Enforcement and Intelligence agencies with the flexibility that they need. There was no real need to go outside of the law. What the new law has done is that it has legalized much of the illegal activity that the Bush administration engaged in with its warrantless wiretapping. The retroactive immunity is also a problem, however, the Telecom companies were often in an impossible position. The FBI's use of "National Security Letters" prevented the phone companies and e-mail providers from protesting or even discussing the surveillance requests with third parties.

Once again, there does not seem to be a balance of power in Washington. The White House still gets a rubber stamp from Congress.
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See how members of Congress voted on this legislation.