Fizzling on FISA

Fizzling on FISA

Obama and other Senate Democrats should not let a lame-duck Administration compromise our liberties in the name of pursuing terrorists.


A political culture capable of considering fundamental questions on the fate of the Republic would have focused on the dire threat to civil liberties posed by Bush’s attempt to gain retroactive immunity for himself and the telecom companies that aided his warrantless wire- tapping schemes. Instead, the talking heads chattered endlessly about the anger of liberal bloggers at Barack Obama’s support for the bill, the right wing’s derision at his flip-flopping and other ancillary tempests.

But the FISA Amendments Act debate–which finished in the House with a 293-to-129 victory for the White House and is coming to a head in the Senate as we go to press–is about a lot more than Obama and the 2008 campaign. And it is about a lot more than granting immunity to telecoms that violated the privacy rights and trust of their customers. “I don’t believe this will be remembered as the ‘immunity’ bill,” says Russ Feingold. Feingold, who with Chris Dodd has led the Senate opposition that Obama once promised to be a part of, is right when he says the bill “is going to be remembered as the legislation in which Congress granted the executive branch the power to sweep up all of our international communications with very few controls or oversight.”

It is troubling that Obama fails to recognize that, as Dodd told the Senate, passage of the measure will sanction lawlessness by an Administration that has engaged in “a pattern of abuse against civil liberties and the rule of law [and] against the Constitution.” It is also troubling that Obama has abandoned the position he took before the Wisconsin pri- mary, when he said, “I am proud to stand with Senator Dodd, Senator Feingold and a grassroots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty.” Now Obama is not only putting politics ahead of principle–he’s also calculating the politics wrong. The fact is, his stance in February helped him win a landslide victory in the Wisconsin primary, just as Feingold’s principled but lonely stand against the Patriot Act helped him win overwhelming re-election in 2004. Obama inspired the support of millions when he refused to play the politics of fear and called on us to heed the better angels of our nature. He risks endangering that support when he plays the politics of calculation.

This bill is not the constitutionally sensitive compromise its Democratic backers, led lamentably by House majority leader Steny Hoyer and Senate Intelligence Committee chair Jay Rockefeller, would have us believe. As the ACLU observes, it gives the government sweeping surveillance power without requiring it to identify the targets; allows the government to conduct intrusive surveillance without meaningful judicial oversight; places no serious limits on government retention and dissemination of information relating to US citizens and residents; and does not limit surveillance to communications relating to terrorism.

Because the FISA bill does not strike a necessary, let alone responsible, balance between security and liberty, it is not enough for Democrats to sit and grumble about the White House getting its way. They won control of Congress in 2006 because the people wanted the legislative branch to check and balance an errant executive. Democrats were not elected to cede ground on core constitutional principles. Instead of letting a lame-duck Administration get its way, Obama and other Democratic leaders should join Feingold in trusting the people to recognize that “it is possible to defend this country from terrorists while also protecting the rights and freedoms that define our nation.”

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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