Legal Commentary

Obama Acts Like a Coward

By Professor University of Miami School of Law

I think Obama will be great on foreign policy. On domestic policy, not so much.

Today he as good as sold out the fight against FISA’s immunity provisions. While the statement below might sound OK, it’s failure to say that the bill is unacceptable in its current form, or to say ‘filibuster’ amounts to a surrender to the fix put in by the leadership. (And, no, this bill is not in any noticeable way an improvement over its predecessor draft. The judicial review provisions are a sham — they don’t test for the legality of any wiretapping, they don’t test for the legality of any request by the administration to engage in wiretapping, they don’t test for whether the recipients of those requests thought or had reason to think that the requests were legal — no, all the court will test is whether the administration says that it made a request. Big deal.)

As one person put it to me, “Obama’s national security state is going to be so much cooler than McCain’s.”

The full text of Obama’s weasly statement is below.

Update: Jack Balkin says, from Obama’s perspective, what’s not to like?.

Statement of Senator Barack Obama on FISA Compromise

“Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

“That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans. I have also opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past.

“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. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

“It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives – and the liberty – of the American people.”

Full post as published by Discourse.net on June 21, 2008 (boomark / email).