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Obama’s Support for My IMAGINARY Surveillance Bill Is Totally Defensible

July 8th, 2008 · 2 Comments

Over at Huffington Post, Lanny Davis establishes that he has no idea at all:

(1) How to spell “Sister Souljah,” and

(2) What the FISA “compromise” bill says.

He writes:

The compromise bill would provide strict supervision by the special FISA Court of all intelligence agency anti-terrorist surveillance activities, with strict time limits on renewal of court orders.

This is right, if by “strict supervision” you mean “checking whether Mike Mukasey can fill out a form correctly.” In point of fact, FISC review is limited to whether the targeting procedures used for surveillance are well tailored to intercept only communications involving foreign targets. The court has no power to review whether the surveillance is likely to actually produce foreign intelligence information, or to inquire into the means of acquisition.

It would require written findings and accountability by the Justice Department and individual warrants and court orders if any U.S. citizen is involved, directly or indirectly, in the surveillance.

If I had time, I would find an animate gif of a head exploding and paste it here, to signify the explosion of my head, now occurring. False, false, false, a thousand times false. As long as the nominal “target” is overseas, no individual order is required to intercept conversations with citizens.

And importantly, it expands congressional oversight of the program, including the House and Senate Judiciary Committees as well as the Intelligence Committees in both chambers.

The bill requires a bit of additional reporting on the program; this is at best a marginal improvement, and in any event, the political branches have historically been notoriously reluctant to act as any sort of real check on intelligence overreach. The passage of FISA was a rare exception, owing to the sheer volume of the irrefutable proof of gross abuse.

But, on balance, the value of effecting immediate strict legal and congressional supervision of the TSP should outweigh concerns about such a precedent — especially since the legislation grants immunity only to those companies that can prove to a court of law that they relied in good faith on governmental advice.

The first clause here is just strange. The alternative to passing this legislation is a return to the old FISA rules, which required actual probable cause warrants for intercepts of American citizens’ wire communications. Or, since the old rules do actually require some minor tweaks, some more modest and sane bill. But it is downright perverse to describe a bill vastly loosening oversight requirements as “effecting immediate strict legal and congressional supervision.”  The second half, by the way, is also false: Nothing in the immunity provisions of the FISA deal requires the telecoms to have acted in “good faith”. They’re off the hook if the Attorney General certifies that they got a note saying the president had approved of surveillance, even if it was obvious to them—as, indeed, it should have been—that the NSA program violated the law.

No doubt Senator Obama has felt political pain to be attacked publicly by his most ardent supporters. But the benefit is that he has reminded voters that as president he would be more committed to the “solutions” business than to yield to the pressure to prove his ideological purity to his party’s base. Many of the swing voters who will decide the election — soft Democrats, independents and moderate Republicans — have been waiting to see if Senator Obama can resist such pressure and follow this approach.

I am so, so, so tired of this bullshit spin. I have never seen any evidence that most of the public even understands what is actually at issue in this debate, let alone that they’re demanding Immunity Now!  In any event, folding to the White House and then boasting about “defying the progressive base” is not an impressive display of courage if “the progressive base” happens to be right on the merits. If the bill is a good deal, that’s enough of an argument for supporting it. This resort to a lot of sideshow misdirection about Obama’s bold autonomy from the netroots should suggest how thin that argument is.

Tags: Horse Race Politics · Privacy and Surveillance



2 responses so far ↓

  • 1 southpaw // Jul 9, 2008 at 1:07 am

    Julian, just FYI, the comments on your Ta-Nehisi post seem to be closed. That would make perfect sense given the subject matter, but then you also said you were leaving comments open . . . so, you know.

  • 2 FISA Coverage – Steven Douglas Maloney // May 27, 2011 at 9:50 am

    […] friend Julian Sanchez’s coverage of the “compromise” FISA Bill.  Julian still has the bit between his teeth against all apologists for the bill, most recently, Lanny Davis. Yes, responding to the opinions of […]