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Obama on His FISA Vote

I had the opportunity to attend an Obama Town Hall rally this week. Given the town hall style of meeting, he took questions from the crowd. One of the inevitable questions, poorly phrased by an attorney for whistleblowers, was about why Obama had reversed his stance on the FISA reform legislation that passed the Senate this week. My immediate reaction was a feeling of betrayal, but I now better understand Obama's perspective and, while I don't fully agree with his comments, I at least feel that I can still support him as a candidate.

Following are some of the points he made in response, and my thoughts:

Punish the White House, Not Telcos
One of the key points that Obama made was that the White House (mis)represented to the telcos that warrantless wiretapping was legal. Thus, he indicated that he didn't believe that the telcos should be punished for believing the lies of the Bush administration, but that instead the focus should be put and kept on the White House for these misrepresentations of fact and truth.

My key point of contention with this argument is that one telco, Qwest, did not accept the White House assertion and refused to cooperate. It turns out that they were in the right in their decision. Did the other telcos blindly accept the White House assertion, or did they instead comply knowing that what they were doing was very likely illegal? Unfortunately, we'll likely never know.

Appointment of an IG
One of the key concerns about the retroactive immunity is that with it will come secrecy, and the truth will never be allowed to emerge. To that end, the FISA reform legislation creates an Inspector General position to specifically look into abuses of FISA and warrantless wiretapping with the goal of determining the truth and legality/illegality of the situation. Personally, I don't think we'll ever hear a word on this again, but I could be wrong. It certainly won't emerge before Bush leaves office, no matter how much we all might enjoy a late-October report.

My main concern is that this seems to show a naive belief by Obama in the utility of an IG and government self-policing. I think we've already learned that the government cannot be trusted to do the right thing, so how will this be any different or better? Moreover, this certainly doesn't feel like "change."

Only Civil Suits Indemnified
One interesting aspect of the telco immunity is that it only applies to civil lawsuits, not to criminal charges. This rule raises the bar in going after people, but it does still leave the door potentially open. Irony would be the DOJ and AG filing federal criminal charges against telcos for breaking the law, but anyway. It seems highly unlikely to me that this will ever happen. Besides, Obama made it clear that he believes the focus should be on the Bush administration for perpetuating lies and knowingly acting in contravention of existing law.

The Program is Needed
Obama has been beaten about the ears quite severely for his alleged national security position. He seems to be trying to use this vote to bolster how he's perceived, but let's be honest: dyed-in-the-wool neo-cons are not going to suddenly vote for Obama just because of this vote.

Getting to the core issue, yes, intelligence and surveillance capabilities are needed by the government. However, there are Constitutional guarantees for American citizens against unreasonable search and seizure. Warrantless wiretapping without reasonable suspicion (aka "fishing expeditions") definitely fall under this category of unreasonable.

All this being said, I have some concerns about the ongoing nature of this program, legislation, and the associated debate...

Constitutionality of Immunity
It's still unclear whether the law passed is even Constitutional. The Constitution very clearly reserves the right to pardon for the President (except for impeachment). Congress is thus not authorized to pardon guilty parties. However, in this case there is no guilty party and, moreover, due process is being enjoined so that a guilty party cannot even be established. Is this retroactive prohibition on due process, or the apparent attempt at proactive pardoning, even legal by Constitutional standards? Is there a way to even file suit to force the Supreme Court to rule on the issue? It's very unclear.

What is an "Unreasonable" Search?
I'm increasingly incensed about what is and is not being considered an unreasonable search, particularly by the courts. Ever since 9/11, the hysteria meter has been pegged, and Americans and politicians and law enforcement and intelligence have been extremely eager to throw out any sort of protection of civil liberties and privacy over what is nothing more than an over-hyped perception that we are under constant threat of nation-ending attack by "terorrists." Moreover, this term "terrorism" is increasingly abused to describe any sort of resistance to government overstep, to the point that this day and age increasingly feels like something straight out of Orwell's 1984.

My next blog post will focus on physical security absurdity based on an experience trying to get into the rally this week, but let's just step back and look at some of the things that have come about since 9/11. In less than 8 years, we're now being told that we have to remove our shoes and dump our water bottles before going through airport security. We're also not allowed to bring any sort of sharp metal object through security at the airports, though I do remember a time when pocket knives were actually allowed (I'll talk about threats around this in my next blog post). The government has been increasingly attempting to intercept all forms of electronic communication, from voice to data (including email). They've been told that when these communications involve a foreign end-point, then it's quite alright to do, too (though the admissability of this information as evidence is not clear and does not appear to have been tested).

Laptops are now being seized at the border despite no reasonable suspicion of wrong-doing, and inspectors are going through hard drives looking for anything that might be perceived as illegal or a threat to national security. The UK has passed legislation compelling the disclosure of encryption keys on demand, and I would assume that a similar standard would be applied here in the US. Physical security checkpoints have cropped up anywhere there is a public event, it seems, including on the National Mall for the 4th of July.

The average American is now treated with suspicion in almost all cases. Photographers are constantly harrassed in public, including at malls, despite there being literally no evidence that any terrorist has ever photographed a target prior to an attack. Politicians think us idiots, constantly using the excuse of national security and the threat of terrorism as justification for expanding programs that make no positive impact on security. Most of these programs, such as the expansions under the horrible USA-PATRIOT Act, aren't even being used for counterterrorism, but are instead being leverage against illegal drugs and organized crime.

It seems to me that much of this fear, uncertainty, and doubt has long lived its usefulness, and that Americans need to start raising the bar for politicians in what is actually considered a threat to national security. It's time to rebel against the rhetoric of fear and hatred and instead focus rationally on a risk-based view of security. While the government would have you believe that some guys with junk in a bottle were going to blow up an airplane in London, the fact of the matter is that experts do not agree in the least. In fact, one could even go so far as to point out that it is the government that is terrorizing citizens through the constant use and abuse of dramatic and theatrical threats that are both illigitimate and lame.

In line of the fact that our government is actively terrorizing us, it seems only right that we should reject these weak attempts at self-justification and demand that they disclose full details around the actual risks that are being mitigated by all of these so-called "security" programs. The time is overdue for requiring a full accountability from the government for the vast amounts of debt accrewed over illegal wiretaps and surveillance, failed border protection, politically-motivated witch hunts, and the actual utility of programs like FISA. Just because there is a potential threat does not mean that it translates to a significant risk. Moreover, even if a risk is represented, then the countermeasures implemented must actual serve to reduce that risk, rather than simply make people feel better (feel-good security oftentimes increases the risk by creating a false sense of security).

It's time that the American people stand up for themselves and Refuse to be Terrorized.


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Comments (2)

Thanks for talking about his FISA vote so clearly. Do you think that liberals are hitting their candidate too hard for his vote? Perhaps people are overreacting about his vote, not attacking the root cause for why the item passed or was even considered?


If you look at the response of the EFF (http://www.eff.org/press/archives/2008/07/09), they were flaming mad mainly because their investment in litigation over this issue is effectively stomped. That being said, I think liberals are right to feel somewhat betrayed, because at face value Obama has flip-flopped, even if it is moderated by mitigating factors. As with most things in politics, this is not a clear-cut matter, and it never feels good to end up with a compromise. We'd all much rather have our own way than give in an potentially admit that our way may not be the only way.

So, chalk it up to human psychology meets politics meets a reduced likelihood in recovery of investment in litigation. :)

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