The immunity hysteria
The hysteria that has broken out among we on the left in response to Obama's voting for the FISA compromise was totally predictable. Some more cynical types might say, so predictable as to be planned. National campaigns are dominated by people who believe a leftist can't be elected to national office. That means events that signal a candidate is not a leftist are critical for any election to national office.
But without becoming part of the cynical plan, some reactions to the outrage.
- Obama is no (in the 1970s sense) "liberal": There are many who are upset by this who believe this (and other recent moves) shows Obama "moving to the center." People who make this argument signal they don't know squat about which they speak. You can't read Obama's books, watch how he behaved in the Illinois Senate, and watched how he voted in the US Senate, and believe he is a Bernie Sanders liberal. He is not now, and nor has ever been. That's not to say there aren't issues on which he takes a liberal position. It is to say that the mix of views he actually has and has had doesn't map on a 1970s spectrum of liberals to conservative. He is not, for example, "against the market," as so many on the left still make it sound like they are. He is for same-sex civil unions. So if you're upset with Obama because you see him shifting, you should actually be upset with yourself that you have been so careless in understanding the politics of this candidate.
- Obama has not shifted in his opposition to immunity for telcos: As he has consistently indicated, he opposes immunity. He voted to strip immunity from the FISA compromise. He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important. Whether it is more important than telco immunity is a question upon which sensible people might well differ. And critically, the job of a Senator is to weigh the importance of these different issues and decide, on balance, which outweighs the other.
This is not an easy task. I don't know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).
- Obama's shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise. However important holding telcos responsible is, certainly there is something more important that Congress could have done. E.g., if telco immunity were tied to a bill requiring a 70% reduction in green house gases by 2015, would it make sense to filibuster that bill?
But second, even given it was a stupid promise, in my view, it was political mistake to change -- even if it was the right thing to do from the perspective of a U.S. Senator.
It was a political mistake for the reasons I've already explained: it was self-Swiftboating. This shift is fuel for the inevitable "flip-flop" campaign already being launched by the Right. Their need to fuel this campaign is all the more urgent because of the extraordinary "flip-flops" of their own candidate. So anyone with half a wit about this campaign should have recognized that this shift would be kryptonite for the Barack "is different" Obama image. Just exactly the sort of gift an apparently doomed campaign (McCain) needs.
But again, to say it was a political mistake is not to say it was a mistake of governance. To do right (from the perspective of governance) is often to do wrong (from the perspective of politics). (JFK won a Pulitzer for his book about precisely this point.) So at most, critics like myself can say of this decision that it was bad politics, even if it might well have been good governance. Bad politics because it would be used to suggest Obama is a man of no principle, when Obama is, in my view, a man of principle, and when it is so critical to the campaign to keep that image front and center.
- Unless, of course, it was good politics: I actually don't personally believe that this was a decision motivated by politics, because, again, I've seen the actual struggle of some who advised on this issue (and I wasn't one of those few), but we should recognize, of course, that this decision to pick a fight with us liberals may well have been worth more than the campaign would lose by this one clear example of flipping. And here, if you let cynical instincts run wild, there's no limit to the games that might be imagined. For what better way to demonstrate (accurately, again, for remember #1 above) that Obama is not beholden to the left than by this very visible fight that Obama doesn't cave in on. When I received the blast from Moveon, demanding that Obama reverse himself (again), it was absolutely clear that he wouldn't. For how could he reverse himself then, and avoid the tag of being tied to the left? And certainly (more cynicism) Moveon recognized this. What greater gift than a chance to act independently of a movement that (while good and right and true, in my liberal view) is not anymore a spokesman for the swing votes that will decide this election.
- But assume you reject #4 completely. Then one more thought: Isn't it time for Obama to resign from the Senate? Why should he allow the weird framing of issues that will come from this spineless institution to define his campaign? (Notice, McCain didn't even deign to show up.) Why not simply confess to his constituents that he can't do his job as United States Senator from Illinois while running for President of the United States. That the clarity of message necessary for the latter isn't consistent with the obligation of compromise required for the former?
- Finally, and 2bc: please, fellow liberals, or leftists, or progressives, get off your high horse(s). More on this with the next post but: it is not "compromising" to recognize that we are part of a democracy. We on the left may be right. We may be the position to which the country eventually gets. But we have not yet earned the status of a majority. And to start this chant of "principled rejection" of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).
That taunt will be continued.
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Comments (133)
> Getting a regime that requires the executive to obey the law is important.
How is the executive any less able to ignore this version of FISA than the previous one?
Several dozen amens, esp. to 6. It really gets back to that most obnoxious of tendencies in some corners of the left (esp. pre-2000), of believing that somehow one can be virtuously above politics. You play the game, you take your licks, you move to the next screen with a win or a loss, and then keep fighting for what you believe. But not staying in the game is just... beyond lame.
Hmm. Interesting apology. You missed a couple of key points though. He did promise to filibuster this bill. He didn't. You can try to explain it away as a stupid mistake, but he rallied the left around this and other issues. Now he's abandoning that position. Your post here has the trappings of a reasoned and nuanced argument but amounts to nothing more than a justification for simple political posturing.
Sorry, but I have to disagree heartily on point #2. The new FISA law was all-around awful, even if you ignore the telecom immunity provision. FISA has worked for decades, and it wasn't necessary to make it easier to get wiretaps. The FISA courts are effective, and provide some measure of judicial oversight. Not required under the current bill.
Obama was afraid of looking "weak on terror" if he voted against this bill. The Dems have to stop being so afraid of disagreeing with the Republicans. Stand your ground, and you'll get a lot more respect.
An executive can always ignore the law, Larry. But Congress can make it clearer that he is ignoring the law.
Matt, I think it is you who missed the key point. I agree that he promised to filibuster the bill. I said that. And I didn't try to "explain it away": I said it was a political mistake. It was a political mistake for the reasons you said. It was also a political mistake for the reasons I said. But as well as a political mistake, it could well have been (a) the right thing to do from a governance perspective, and (b) not a political mistake (if you accept, as I don't, that this was a political move to distance himself from the left)
So if it was perhaps the right thing to do from a governance perspective what would have been your position in this specific sense if he had voted against the compromise? Would this have been perhaps the right thing to do as well? Or would voting against it have been a poor decision in this respect? You make great points, but I feel you are taking this stance because you're a little irritated at the "hysteria" and not the reasons behind it. Why is the ACLU taking about a full-page ad? I don't think it's because they're "hysterical." Thank you for a good counter-point, though.
To me, the essential problem is that he's essentially continued the status quo of the past eight years using reasoning couched in the language of faux terror in a situation in which he could have afforded to take a principled stance without impacting the passage of the bill, not that he went back on a promise to filibuster a bill. He's cast himself as a candidate for change, yet continues to fail to deliver it. That has nothing to do with his liberal status (which is pretty flimsy anyway).
1) While Obama is in fact far more centrist than many activists imagined him to be - and this is no secret - I'd say the political chestnut that he "ran to left" for the Democratic party primary is basically true.
2) That is, he decided this was the best deal possible. I don't hold it against him myself. It does, however, represent a compromise against principle.
3) The flip-flop ship HAS SAILED with rejecting public financing. FISA is a very minor issue to the general populace. It'll be forgotten broadly in a few months. But the rejection of public financing is much more significant. McCain can hammer him throughout the campaign, every time money is mentioned - which will be frequently.
4) I don't think this is a "Sister Souljah" - those involve a deliberate decision by a candidate to kick a powerless member of the base. It reads more to me like Obama's campaign just wishes this would go away.
> "He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity."
He voted for this under the assumption that he will be elected President? Seriously? Please tell me that didn't factor into his decision. Talk about the politics of hope...
Virtually any terrible vote could be justified this way and in my eyes this argument as bad as the "If the President orders it then it is not illegal" argument peddled in recent years.
But there is good news. We could retire the "I was for it before I was against it" meme with "I only voted for it because I was against it"!
Lessig:
"I agree that he promised to filibuster the bill. I said that. And I didn't try to 'explain it away." I said it was a political mistake."
It was more than merely a "political mistake," Larry, it was a direct, clear, incontrovertible breaking of a solemn pledge. As was the public finance decision. In layman's terms, Prof, they are both LIES. So,yeah, you are trying to "explain it away" when you call it merely a "political mistake." The rest of your gobbledygook is too clever by half and irrelevant anyway. Your candidate is a LIAR. End of story. Full stop.
People don't like liars, Lar, maybe that's why they get "hysterical" about it.
The point, doofus, in case you still don't get it, is that your candidate, the man who, for no good reason whatsoever and in the face of all the evidence, you chose to believe was "not a politician," is, in fact, the consumate full-of-shit, deny- today-what-he-said yesterday, change with the wind, triangulating, shifty, slippery, and just plain flat out dishonest, politician. Live it, learn it, love it, grok it, own it!
You were simply wrong about Obama, Prof. You were suckered, played, okie-doked, whatever term you prefer. Not surprizing, really, politics is not your specialty. I suggest you go back to your law books, before you make yourself look even stupider than you do already.
You lost me when you said that the new FISA bill was progress. I think that Balkin and Lederman have ably demonstrated that it is not, and that far from setting a higher standard, it just gave Bush what he wanted & ratified his administration's past actions (balkin.blogspot.com). The telecom immunity is a red herring.
Re: point 6:
For me, this isn't about whether or not Obama is a 'pure' liberal or leftist or progressive (as I'm not any of those myself). And it isn't about 'principled rejection.' It's about no longer voting for politicians who sell my fundamental rights as an American downriver in order to get elected.
That isn't a matter of principle. It's a matter of strategy. I will not vote for people who screw me that way, just as I won't feed a dog a biscuit when it craps on my rug. My refusal to reward that behavior isn't a 'principled rejection;' it's a refusal to reinforce bad behavior.
--Charles
"Isn't it time for Obama to resign from the Senate? "
You must be hanging around California liberals too much or talking to like-minded people, but McCain is far from doomed, which is why Obama is moving to the center, and anything can happen in politics.
Personally, Obama might want a job if he loses, and politically I would think that liberals would want a platform for a good public speaker. Not to mention, Obama could always build up his political resume with accomplishments.
He has taken people's money and run.
The essential problem is that he's essentially continued the status quo of the past eight years using reasoning couched in the language of faux terror in a situation in which he could have afforded to take a principled stance without impacting the passage of the bill, not that he went back on a promise to filibuster a bill.
Sorry, but I have to call bull on your essay.
Barack Obama said that he would filibuster any FISA update that included immunity 6 months ago. He voted for cloture.
He lied.
If Obama loses to the sick pathetic old man, we can trace his loss to today's vote, as we can trace Hillary Clinton's loss in the primaries to her war authorization vote.
The strength of Obama's movement is not their numbers, but their enthusiasm, and he made a cowardly decision, and has, at least for now, deflated the enthusiasm of some if not most, of his supporters, at least in the near term.
What's more, he did it for nothing, because his vote will not change the Republican attack ads one bit.
It was cowardly and stupid.
To quote Tallyrand, "It was worse than a crime; it was a mistake."
Professor Lessig,
I take your point that an executive can always ignore the law, but what part of the original FISA bill was murky with regards to the the requirement for court authorizations for wiretaps on US persons?
I just read through the Title 50, Chapter 36 and it seems pretty clear to a lay reader like myself that a court order is required.
Further it seems to spell out specific penalties for violating that law.
I believe Obama to be a better candidate for president that McCain, but to diminish criticisms of Senator Obama's change of stance on this matter is of grave concern.
I, among many, believe that this bill diminishes our 4th amendment right against unreasonable search and seizure, while simultaneously hampering the investigation of government misconduct.
Arguing the merits of the bill, you could argue that the bill does not do this, that concerns about this are over hyped, that there is more good in this bill that it is worth the trade off.
If after a reasoned debate you come to the conclusion that this is indeed a bill that dramatically hampers the fourth amendment right and the trade offs are not worth it. It is incumbent upon you to raise question about legislators who support such a bill. What support of the abridgment of constitutional rights merit serious reconsideration of the quality and capability of a legislator commitment to uphold the constitution? That question is all the more important when that legislator will be the next executive. Benefiting from the abridged liberties. If they failed in or willfully undermined their duty to uphold the Constitution, should that not be considered in debating their merits as an executive?
Make no mistake, Barak Obama voted for this bill. He approved it. Whatever he may have said, he voted for it. If it is an abridgment of our fundamental rights, he approved that. If there is other good in this bill that outweighs this capitulation, what is it? His approval of the bill undermines his credibility in general as he opposed this bill earlier. Furthermore, if he had staunch convictions about the propriety of this bill before he was the presumptive nominee, and was unable or unwilling to sway fellow Democrats after he became the party figurehead, it highlights either a failure in convictions or a failure in leadership (or a change in the facts surrounding the bill, but I do not believe that to be the case).
If you're attempting to argue that he is not a worse than John McCain as a candidate, I agree, and that better him than McCain is the lesson of Bush/Gore/Nader. But this recent tacking Republican indicates he's trying to lose a race to the bottom rather than win a race to the top. I'm realist enough to know that I'd prefer to pull the lever for him in November, but given this reversal, but upset about the democratic congress's failure, his included, to know I'll need a shower after.
Oh, and to allay concerns about unwarranted surveillance, I'll have to remember not to email or call any Middle Eastern friends and forget that to intercept and monitor "foreign" traffic, the government will need to intercept all traffic to ascertain which is which. No doubt they won't look at the domestic traffic in the process, and I'm sure we'd be able to find out if they did to keep them honest.
He has promised to repeal the immunity as president.
Can you give a citation, I don't see this in the news reports. How will he do this? The immunity is now law. I don't think he can do it by executive order (isn't that what we complain about Bush doing?) Is he planning on passing a new law through Congress that "ungrants" this immunity? Can the government do that?
Actually, the left is a huge majority if you look at popular opinion on actual issues. Take health care, the economy, the Iraq war or environmental issues, just to pick some issues of major importance. The public is overwhelmingly to the left on these issues. In a real democracy, politics would reflect that. In a real democracy, we would have at least one of two presidental candidates campaigning on policies such as single-payer public health care, tax raise for the wealthy, a non-imperialistic foreign policy and big investments in green energy.
But as usual, what we get is one extreme-right and one centrist-right candidate, and a election decided by the media and the public relation industry. And the majority of the population (ie. the left) continue to be ignored.
But again, to say it was a political mistake is not to say it was a mistake of governance.
Leaving politics aside, the FISA bill was a mistake of governance, a deep betrayal of the rule of law and of progressive principles. That was not a position of 'the Left' but of a wide swath of civil libertarians on both the right and the left. Bob Barr, who led the impeachment charge against Clinton, has made this an issue in his campaign for President. More to the point, there is no wide pro-telecom movement in this country; Obama didn't vote as the pubic wanted him to vote.
I simply can't understand why it is so important to smear and belittle 'the left' who worked to stop this monstrosity from going through. No major opinion leaders on the left are suggesting they won't support Obama in the general against McCain, nor is anyone on the left anti-market. If you find anyone who is sparking this outrage that is actually arguing that supporting Nader is a smart strategy, quote and argue with them. Otherwise, false generalizations do a grave injustice to your argument.
So now an enthusiasm preserving for the rule of law rather living under the arbitrary dictates an executive, even an elected one, constitutes hysteria? That's a posture close to giving up on the Enlightenment. Come on, tryng to get approval for Obama is not worth that.
Preview should be my friend. Sorry.
So now an enthusiasm for preserving the rule of law rather living under the arbitrary dictates an executive, even an elected one, constitutes hysteria? That's a posture close to giving up on the Enlightenment. Come on, tryng to get approval for Obama is not worth that.
Lessig makes a good argument here, that puts Obama's FISA vote in context. The one big mistake I see in his reasoning is the following:
"securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize...what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important."
My understanding is that if no legislation had been passed, we would return to the pre-Bush FISA courts, which "[required] the executive to obey the law," even if those requirements were pretty thin. So there was no need to secure amendments to new FISA legislation because that new legislation was wholly unnecessary. The FISA courts already had arguably too much discretion, and only rejected warrants in five cases over 30 years.
I think the problem here is that opponents to new FISA legislation hung too much of their opposition on the immunity provision, which was only one reason why the legislation was bad. The reality is that the entire legislation was unnecessary.
worst foto-op of 2008, 4th July: Shrub dared enter Mr. Jefferson's home.
Recessional*: the Rotting Legacy of 40-43 to 44
1. Better-defined imperial limits: in distance, treasury, projection of power
2. Pox Americana harassed at every frontier supply line.
3. Richer rich, poorer poor, dying middle.
4. Tyrannical social control erasing living memory of a democratic republic.
Those wretched ephemeral babblers lusting after the purple in '08 notwithstanding, a slide into the abyss can only be slowed not reversed.
Meanwhile xian dominionism and GOProto-fascism pump their ideological excrement into empty heads obsessed with their own folly-driven gasoline costs. (The new KYSS -- Kill your SUV, stupid.)
I applaud Little Bush our postmodern Caligula. The Bushite regime's catalysis of imperial rot is not necessarily a bad thing.
The ancient Romans knew all about us. "Those whom the gods wish to destroy, they first make demented."
bipolar2
© 2008
* Rudyard Kipling's faux-xian anxieties of 1897 bore much strange fruit in 1914.
Being "Naderesque" is a good thing. Suggesting that we as a country have to be centrist before we can be leftist is ice cold bologna. Conservatism leads to conservatism, liberalism leads to liberalism, and "centrism" leads to "centrism".
It's foolish to think that if a lefty candidate pretends to be centrist to get into office everything will be fine after that. It's called a backlash and it's what Republicans are seeing right now. Bush had to pretend to be a centrist to get elected, and once he did it was an 8 year neo-con orgy. But now it's coming to a crashing halt and the pendulum is swinging back.
Why would it be any different for a Democrat? If Obama pretends to be a centrist just to get in, we get an 8 year liberal orgy (Ooh! Sounds like fun) and then the pendulum swings back. The nation just swings back and forth and never progresses to the left.
Take a lesson from the gay community. If you want the nation to accept homosexuality, it starts with pride. If you want the nation to move left, have some pride it in. You're a lefist and you're right. Conservatives and centrists are generally wrong. Why be ashamed of it?
I'd much rather be a Nader and lose over and over with my ideas than win with somebody else's.
In regards to #5.. As an Illinoisan who voted for Obama I would be furious if he resigned from the Senate. I sure as s**t didn't vote for that. He took an oath of office, much like he'll take on inauguration day. Some things, like duty and commitment, are more important than winning.
Seriously, Lawrence.. You're sounding kind of "Naderesque" in a crazy way, lately.
Lessig, this is clownish. Obama swore up and down that he was against the spying:
"This Administration has put forward a false choice between the liberties we cherish and the security we demand. When I am president, there will be no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war. Our Constitution works, and so does the FISA court."
And then he did the opposite - he sided with the Republicans to enable a regime of warrantless wiretapping of all Americans with no oversight whatsoever.
Lessig wrote: "The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important."
That is perhaps the most hackish thing you've ever written. I have respected your work a great deal - I'm one of the people you sent galley drafts of your books to - and I just lost two notches of respect for you. FISA, 1978 edition, required the executive to obey the law. In fact FISA, 1978 edition was written solely to restrain the executive. FISA, 1978 edition, was pissed upon by the Bush administration. The remedy, as promulgated by Barack Obama: immunize all the lawbreakers from penalty, sweep it under the rug, and going forward, avoid problems by making it legal to wiretap everyone without warrants - literally, to shape the law around the actions which the Bush administration desires to perform. There is literally no honest way that the FISA amendments just passed can be described as requiring the executive to obey the law. Congress' laws are obeyed, or not. When they are not, writing a law that says "obey me this time!" and exempting from punishment everyone involved is simply the weakest response possible. There is no response Congress could have made that would be LESS designed to make the executive obey the law than what they did do. Future Presidents who used to be uncertain or fearful about breaking the law are now quite certain that they need have no fear of doing so.
My advice to you - personal and direct - is to write no more about Obama. You are too biased to write honestly about him, and since writing honestly is something you wish to be known for, this is tarnishing your legal reputation.
Above I see many posts that illustrate the left at its most idiotically self-righteous. To say that a statement made by a campaign official is the equivalent of a "solemn pledge" is downright stupid. I hope nobody actually lives their lives in such a way that every utterance is a "solemn pledge". Not all promises are "solemn pledges" (in fact, almost none of them are), and are frequently broken if circumstances change. Those that don't understand that need to grow up. The new FISA bill is much stronger in court oversight than the previous one was and stronger than previous drafts were, and this is worth forfeiting the ability to sue a phone company for caving in to pressure by the Bush administration.
Here's a point I want to make: The far left and the netroots are not Obama's "base". His real base is much bigger than that. Obama didn't run as a left-wing extremist in the primaries. Those that wanted a left-wing extremist had Kucinich and Edwards to choose from, and most of them did indeed choose Edwards. All the left-wing blogosphere I read generally supported Edwards, only getting behind Obama after Edwards dropped out after South Carolina. Up to that point, Obama's delegate haul in the early states had little to do with support from the far left netroots who were supporting Edwards. By the time the netroots got behind Obama after Edwards dropped out, the Obama train had already left the station, things were already in motion for Obama to win massive delegate hauls in February (which secured him the nomination), so the netroots late-comers can claim no credit for that. To conclude, the far-left and netroots didn't deliver the nomination to Obama, so he's not beholden to them and isn't going to respond to their demands to jump by saying "How high?" Don't like it? Then feel free to go cut your nose off to spite your face by voting for (the now sadly race-baiting) Nader.
Larry,
I think your argument is very nuanced, but I want to call specific attention to the hypothetical you propose regarding an otherwise more agreeable bill having telecom immunity attached to it. My understanding is that you think Obama's promise to filibuster was a stupid move - but, in the context, I think his promise is understandable and I feel that he still could have followed through on it.
What makes the promise to filibuster understandable? It was motivated in a different political climate, one during which Edwards and, to a lesser extent, Dodd, were running to the left of Obama and Clinton in policy proposals and forced them to respond. I'm not implying that Obama or his aides made a conscious or intentional decision to switch on this promise (I don't buy the "evil and plotting politician" image anyways), but I am arguing that it is unfortunate the promise was broken in a direction towards the center. Throughout the primary season, the netroots were largely divided (mostly between Edwards and Obama, but some Dodd and Clinton supporters as well). So, in the same way, the hysteria is understandable as well - and it's just as much disappointment in ourselves and our ability to evaluate which candidate would most aggregate our interests. Another reason that I understand the hysteria online is that the progressive movement in this country needs a spokesperson almost as much as it needs a winner. I think there is a significant portion of the left online that believes it is just as important, from a cultural and paradigm perspective, to have a political -leader-, such as a presidential candidate, that is unafraid to stand strong for something (progressive and) unpopular. So I largely understand why Obama made the promise, why he may have broken it, and why the left is outraged.
But I don't think I accept that he had break his promise to filibuster. First, invoking your greenhouse bill hypothetical, couldn't Obama and the Democratic congress filibuster that bill knowing that their political fortunes are extremely likely to improve in the very near future? And that they could probably pass a greenhouse bill without the telecom immunity in January? In essence I would argue, given the political climate and context, the only justification I could accept from Obama is if a bill came through that simply was too time-sensitive for Democrats to put off until January -BUT-, at the same time, the Republicans could afford to put such legislation off and thus force the Democrats to make a tough decision.
I hope that made some sense.
Obama isn't a leftist who is shifting right, he's a centrist who played left to get all those wacky kids excited enough to walk precincts and nostalgic boomers hopeful enough to open their wallets. Now that he's locked up the nomination, he can be himself again, leaving both groups disillusioned. Dr. Lessig, as with many others, attempts to protect himself from cognitive dissonance by making up convoluted (or "nuanced") excuses for this betrayal, even though the situation can be summed up neatly with one of his trademark single word PPT slides--POLITICS.
P.S. I hate to be a member of the word police, but since we're friends on the left, I do feel duty bound to share that "hysteria" has some pretty nasty-sexist connotations. Perhaps you meant angry and disappointed?
Pepe:
"Above I see many posts that illustrate the left at its most idiotically self-righteous. To say that a statement made by a campaign official is the equivalent of a 'solemn pledge' is downright stupid. I hope nobody actually lives their lives in such a way that every utterance is a 'solemn pledge.' Not all promises are 'solemn pledges' (in fact, almost none of them are), and are frequently broken if circumstances change. Those that don't understand that need to grow up. The new FISA bill is much stronger in court oversight than the previous one was and stronger than previous drafts were, and this is worth forfeiting the ability to sue a phone company for caving in to pressure by the Bush administration."
As the auhor of the "downright stupid" comment about the solemn pledge, all I can say is "Wow." Could you be anymore disingenuous than this, Pepe? Here is the link that provides the background to the "statement" made by the "campaign official."
http://tpmelectioncentral.talkingpointsmemo.com/2007/10/obama_camp_says_it_hell_support_filibuster_of_any_bill_containing_telecom_immunity.php
And here is the statement itself:
"To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies."
(1) Burton, the man who delivered the "utterance," is not merely a "campaign official," he is uniformly described as Obama's official spokesperson.
(2) This was no mere "utterance" or "statement." It was just what I called it: a pledge. The TPM article shows that this was not some off-the-cuff statement. Rather than try to paraphrase the description of the circumstances in which it was made, let me just quote the article:
"As we reported here yesterday, MoveOn and a dozen top liberal bloggers were preparing to wage an aggressive campaign today to pressure Obama and Hillary to say that they'll support Chris Dodd's vow to filibuster any Senate FISA bill containing telecom immunity. And late yesterday both Obama and Hillary put out statements saying that they'd back Dodd's threatened filibuster of the current legislation that's just come out of the Senate intel committee.
"Those statements, however, lacked the clarity that immunity opponents have been looking for, so today the MoveOn and lib blogger campaign has been in full swing. MoveOn emailed members this morning urging them to call Obama and Hillary and...
'Tell him/her the public is counting on him/her to filibuster any bill that gives immunity to phone companies that broke the law.'
"Now we have Obama's answer: He'll support a filibuster of any such bill.
"When informed of Obama's decision, MoveOn expressed relief. "Excellent -- this is the kind of leadership we need to see from the Democratic candidates," MoveOn spokesman Adam Green told Election Central. 'Dodd, Biden, and Obama all agree. Will Clinton get on board?'"
A "pledge" is exactly what was sought, and what was given. . . "To be clear: Barrack will support a filibuster of any bill that includes retroactive immunity. . ."
Got that, Pepe? "To be CLEAR" and "Barrack WILL support" and "ANY bill that includes. . . " That's the language of a pledge, not a mere statement. Not a conditional prediction of what the Senator might do, but a solemn pledge of what the Senator will do.
(3) Pepe himself seems to understand this, as he also uses the word "promise" to describe the "statement." As far as I know, the terms "pledge" and "promise" are pretty much synonimous.
(4) Pepe claims that the "circumstances" have changed between the pledge (oh, excuse me, "promise") and the vote, and that this year's bill was better than last year's. All of that may be true, although I doubt it, but it's irrelevant in any case. The point is that Obama pledged (oops, there's that word again! sorry, "promised") to support a filibuster of "ANY bill that includes retroactive immunity. . ." This bill contained retroactive immunity, and Obama did not support the filibuster. Therefore, he broke his promise, went back on his word, made a liar out of himself, whatever formulation you like.
(5) Accordiing to Pepe, though, even promises are "frequently broken" and only children think otherwise. That may be true in some circles, Pepe, but where I come from, people strive to honor their commitments and keep their word. And, yeah, this applies to "grown ups" as well as children.
(6) Obama has a pretty thin record. Most of his appeal is based on what he promises he will do, rather than pointing to what he has done as proof that he deliver more of the same. What good are all those promises if they can be as easily discarded as this one?
(7) As Professor Lessig's comments over the past couple of days have made painfully clear, another large part of Obama's appeal has been his supposed embodiment of a "new kind of politics," based on "hope" and "change" and "unity" and treating the voters with respect and so forth, but that appeal pretty much goes out the window when Obama resorts to the same-old-same-old of parsing pledges into "utterances," claiming those "utternances" are "no longer operative" and generally talking out of both sides of his mouth. No one forced Obama to make these themes the centerpiece of his campaign, if he is now being held to a higher standard than that of a typical politician, he has no one but himself to blame.
To say that a statement made by a campaign official is the equivalent of a 'solemn pledge' is downright stupid.
No, the solemn pleadge was the oath he swore when he took office. Which he just broke, along with most of the rest of Congress.
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
I didn't expect liberal from him, but I did expect him to understand what he was voting on, and I ahve yet to see any statements from him that reflect that understanding.
One problem with this whole analysis about "left - right - center" is that it is a fiction and in fact empirically demonstrated to be wrong by cognitive scientists.
The realm of political values is not linear. It's more "polar" in the sense that people can range closer to progressive or conservative notions (think" latitude) on a wide range of issues (think: longitude). Lakoff's favorite recent example is the comparison of Chuck Hagel and Joe Lieberman who disagree on just about everything, but because they both "defected" from the consensus views of their respective ideologies on Iraq, they are described as "moderates" as if there were some well-defined center or even a well-defined "marginal vote,"
There isn't. And saying it over and over again won't make it so.
There is a whole world of "shades of purple" among independents and other swing voters who are not ideologically ossified. Triangulation in the linear Clintonian sense is a flawed model , just as the "Overton Window" that the conservatives have used to try to shift the public consensus is a flawed explanation for why their techniques worked in some respects.
There's a lot of "gotcha" politics going on in these discussions, and that may speak to some voters, which is why it was a political mistake for Obama to (1) make an unwise promise and (2) then reverse it. Obama is not a hugely experienced politician. One might well expect him to make mistakes from time to time.
His strength will be shown if he can respond to his mistakes by correcting them as best he can and avoiding them in the future. So far he has shown himself to be a quick study, and to be running a generally nimble campaign that still seems fairly unified and coherent in organizational terms, unlike McCain's cult of personality and reputed style of leadership by fiat.
I'm sure Obama is learning a whole lot from this episode. Depending on what his expectations were, it may either surprise him or confirm his thinking, but either way there is a ton of data here to digest and and inform future decisions.
I think Larry's idea that Obama should resign from the senate now is very interesting (I hadn't considered the option but this is certainly not unprecedented). Senatorial and presidential governing are different beasts. It's a riskier step (if you lose you gotta go look for a job), but maybe with the celebrity that comes from such public prominence he shouldn't worry too much.
It would be a bold move whatever way you look at it.
Dear Larry,
Nobody's perfect; not even Obama. I feel that your going to bat for him on this for him doesn't meet my need for authenticity. Please be open to rethinking your stance on this issue.
It's not hysteria to care about the Constitution; I'd expect you of all people to understand that. The retroactive immunity isn't even the worst provision; the acceptance of general warrants, in direct violation of the Fourth Amendment, while setting up Kafkaesque conditions so that no one can challenge anything in court, is a disaster.
At minimum, Obama could have kept his previous promises by voting against cloture and against the final bill.
I will still vote for Obama (we certainly can't trust Sen. McCain with this kind of power), but it does make clear that my political contributions need to go to real progressives and to groups like the ACLU and EFF instead. Someone needs to fight against presidential dictatorship.
You do have a good point about resignation from the Senate. Congress has become a feckless body. They've given away their war powers because they don't want to be held responsible. For anything.
Oh, and another thing: opposing telecom immunity was not a minority leftist position. Polls showed that most Americans with an opinion opposed immunity. It wasn't good politics for the Democrats to surrender; just the reverse. Another round of "Democrats cave" headlines disgusts the public and re-inforces the meme that the Democrats are weak and spineless. If they won't stand up against a 25%-popular president and the threat of attack ads, why would anyone trust them to stand up against a foreign threat?
Democratic consultants were so scarred by the Gingrich victory of the mid-90s that they still think they are living in a Republican-majority country, where they have to position themselves carefully to save their seats.
Obama explanations for supporting the FISA capitulation make absolutely no sense. For a constitutional lawyer he acts like he either never read or doesn't understand the bill. He put the same deceitful spin on it as Pelosi.
The real question is why now...why did FISA need to be changed this drastically now if not to grant Bush cover for his illegal felonious activity.
Mixed with this is at the same time Obama taped a 1 min. political support ad for one of the worst Bush enabling dems in congress who claimed dems were cut and run on the Iraq issue. Dem Barrow from Georgia was being challenged by a progressive Obama aligned dem in the primary yet threw his support behind this DINO Barrow. He did the same in Illinois in the state primaries choosing a conservative dem over a progressive dem in the primaries. Does Obama really pay attention or is he suffering from bad advice. Did he even read the FISA bill or just listen to the consequences of his actions from some bad advisors. There was really no downside to opposing FISA...none. Now the republicans are claiming that " Since he finally came around on FISA so soon he will also come around on Iraq and other conservative stands". It was not only the right thing to do but the politically correct thing to do to oppose this FISA capitulation. Yet he decided to move to the right and support the Bush/Cheney felony cover up. I have yet to hear or see a reasonable explanation for his decision (as Glenn Greenwald refutes his explanations point by point) except that he made a very poor choice thinking only of political expediency. How can he now even say " a change you can believe in" when he surely knew the results of his decision or are we to believe he's not that bright.
P J Evans, I have yet to see any evidence that the new FISA law is unconstitutional (I guess the ACLU suit will put that to the test), so I don't see how voting for it violates an oath to protect and serve the constitution. The granting of immunity is certainly part of our legal framework, has been for centuries, and is indeed a *vital* part of our legal system. Unless you can show that the FISA law itself is unconstitutional, then you can't claim that voting for it violates the oath to protect/serve the constitution.
Also, you guys need to focus your anger at the real target, which is NOT the phone companies, but is the Bush administration. There are two reasons I have no problem with immunity:
1. I can't stand class-action civil suits. They are a scourge on our society and only serve to make the lawyers rich. I "won" class-action suits by being notified after the fact that I was the member of a class that Apple harmed due to iPod issues and Amazon harmed for something I can't even remember. I didn't even bother to collect the measely reward since I didn't favor the suit and didn't suffer from the alleged problems, but the lawyers themselves made millions.
2. If, in the wake of 9/11, the government had pressured me to do something, would I really question if it were legal or not? I'd likely assume that it *was* legal (since it's being authorized by the government) and would go along with it. So I don't blame the phone companies for going along with the government's request, and therefore don't support suing them. (QWest did resist and should be commended for it, but there reward should be gained via the market place, where customers abandon AT&T and the rest and move to QWest, rather than their reward simply being safe from a class-action civil suit that most of the public doesn't care about to begin with.)
You guys are acting llike the phone companies are evil incarnate, but they're not. The phone companies are among the *victims* of the Bush administration. Bush is the problem, not the phone companies. You should focus your ire on the real target rather than getting so worked up about a sideshow civil suit against phone companies.
freemansfarm, when I talked of "idiotic self-righteousness", you certainly do fit the bill.
I think you and your cohorts are left-wing versions of Bush himself. He sees everything in black and white with zero nuance, and you do the same, just on the opposite end of the ideological spectrum. And you don't seem to know anything about the legislative process. Legislation is built on give-and-take compromise. Sure, either side might stake out an extreme position, but eventually then compromise is achieved. With no compromise, nothing gets done. And yes, to not understand that is to have the naivete of a child.
BTW, Are you really going to sit there and say that you've never changed your mind about any promise you made? You're "perfect" (as in, perfectly uncompromising), right? Note that Obama never claimed to be perfect, he's said over and over that he and his campaign are "imperfect". So just count this as an example of that admitted imperfection if you wish. Or, as I said, feel free to vote for Nader the race-baiter who has reduced himself to a quadrennial candidate that runs simply as an ego-trip if it makes you feel better. But be sure to examine his record in full; you'll find he's just as "flawed" as the rest of us.
One last thing: I just read a brilliant diary at DailyKos on why you should still support Obama even if you don't like his FISA vote. Please read it before doing something stupid in November.
http://dailykos.com/storyonly/2008/7/10/212516/077/495/549720
To Pepe:
I guess you are now admitting that Obama did make a pledge and did break that pledge, as you do nothing to back up your orignal claims to the contrary, or to the rebut the sourced, quoted, and linked evidence that I presented in my last post.
What you think about my knowledge of the "legislative process," and your idle speculation about my own record in promise keeping, is simply irrelevant, as is your commentary about Ralph Nader. Try to stay on topic.
As for the "brilliant diary" at Daily Kos, sorry, but that's a site I long since ceased patronizing; Markos will get no traffic from me.
Pepe,
1. Have you looked at the lawsuit and the group that started this process, the one filed in San Francisco 30 months ago by a small civil-liberties non-profit*? When the December 2005 NYTimes article came out, what, if anything, would be the legal response you'd want?
2. Did you know that the previous rules for telecom companies were very specific and strict about what the companies could and could not do? Did you know there was a time when every international telegram was copied over to the government, and Congress made rules for telecom companies to stop that sort of driftnet activity? Why should the telco's get a pass and the government the blame for a situation where Congress had carefully and directly told the telco's that they must take responsibility for following the law?
3. Did you know that while this activity started before 9/11, it also went on for years afterwards? If the government asked you to do something during an emergency, would you never stop--weeks, months, or years later--to review what you did for them? Do emergency requests get a pass simply because they're made during an emergency, however much time has gone by afterwards?
4. If the government comes to a company and asked them to do something that might be inappropriate, who should make the final decision--the company's legal department (or IT department), or a judge?
i.e.If the executive branch makes the request, then those are the only choices--if the company doesn't ask a judge, then essentially the IT department or legal department is deciding--concurring--that the request is legal.
* disclosure--I know people working there. They aren't rich.
Coming to Obama's defense here sadly undermines your entire Change Congress effort. Blocking telecom immunity was one success among the many many losses suffered during Bush's tenure. Obama's reversal made a significant contribution to turning this lone win into yet another loss. The dynamic here starts with accepting the proposition - wire tapping US citizens will make us safer. What evidence do we have this is true? All the super secret NSA type projects operate with no accountability for obtaining results. The embrace of a dubious assumption represents the starting point for many of the losses suffered by the American people during Bush's eight years - the multi-trillion dollar cost and loss of life regarding the Iraq War chief among these. The Change Congress effort goes nowhere unless you can use teaching moments like Obama's reversal on FISA to illustrate how things go astray. You decision to serve as apologist for Obama represents the precisely wrong strategy for your new priority. In particular, Change Congress needs engagement of the citizenry to hold elected officials accountable. The FISA issue generated a tremendous amount of engagement, and, yet, you applied your significant skills in analysis toward telling people to disengage.
Talk about signaling not knowing squat about which you speak....a "Bernie Sanders liberal"? That's your benchmark? Cluestick: Bernie Sanders is a socialist. He's an Independent because the Democratic party is to right-wing, as he is an open and avowed socialist. That you use HIM as your guideline for what constitutes a 'liberal' is really illuminating. In poker, it's known as a 'tell'.
If you don't believe me, go do some research. It'd do your credibility a world of good, especially when one takes into account that YOU are assuming that others are ignorant.
# Obama is no (in the 1970s sense) "liberal":
Ron Paul is also no 1970's liberals. He opposed this bill. Anybody who cares about the excessive executive power claimed by the Bush administration should have voted against this bill. There was nothing redeeming about it.
# Obama has not shifted in his opposition to immunity for telcos:
He voted to approve it. He also said the FISA court works, and now he has taken many actions it would have had to rule on, and shifted it to the discretion of the AG. Opposing amnesty for the telcos required a no vote.
This is not an easy task. I don't know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).
Please list the progress made in this bill. Try not to laugh as you write it.
# Obama's shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise. However important holding telcos responsible is, certainly there is something more important that Congress could have done. E.g., if telco immunity were tied to a bill requiring a 70% reduction in green house gases by 2015, would it make sense to filibuster that bill?
Good hypo: how 'bout "If amnesty is tied to a bill that practically guarantees the end of any chance to learn of the executives illegal wiretapping, vests the president with unchecked surveillance power over American citizens, and is as disgraceful as the Alien and Sedition Acts, would it make sense to filibuster that bill?" The saddest part of this situation is your hypo: the republicans didn't even need to play chicken on something important (medicare, SS, environment) to get the useless, spineless dems to gut the 4th - they did it themselves. As Glenn Greenwald has said, Bush couldn't even get a republican Congress to pass this tragedy, he needed the likes of Reid, Pelosi, Hoyer, and Obama.
But second, even given it was a stupid promise, in my view, it was political mistake to change -- even if it was the right thing to do from the perspective of a U.S. Senator.
it was a political mistake for the reasons I've already explained: it was self-Swiftboating. This shift is fuel for the inevitable "flip-flop" campaign already being launched by the Right. Their need to fuel this campaign is all the more urgent because of the extraordinary "flip-flops" of their own candidate. So anyone with half a wit about this campaign should have recognized that this shift would be kryptonite for the Barack "is different" Obama image. Just exactly the sort of gift an apparently doomed campaign (McCain) needs.
But again, to say it was a political mistake is not to say it was a mistake of governance. To do right (from the perspective of governance) is often to do wrong (from the perspective of politics). (JFK won a Pulitzer for his book about precisely this point.) So at most, critics like myself can say of this decision that it was bad politics, even if it might well have been good governance. Bad politics because it would be used to suggest Obama is a man of no principle, when Obama is, in my view, a man of principle, and when it is so critical to the campaign to keep that image front and center.
It was a mistake as to his oath, it was a mistake as to his image of "not just another politician," it was a a mistake of principle. I supported him over Clinton because I actually though he was a man of principle. It isn't just that he lied, it's that he voted the wrong way, and it simply cannot be justified on the merits of the bill. This isn't good governance, it's a dual system of justice, and political favors for rich companies that knowingly broke the law, along with a President who broke the law. It's about vesting powers in the executive that should scare anybody concerned with good governance. Please try to redeem the bill on its merits.
# Unless, of course, it was good politics: I actually don't personally believe that this was a decision motivated by politics, because, again, I've seen the actual struggle of some who advised on this issue (and I wasn't one of those few), but we should recognize, of course, that this decision to pick a fight with us liberals may well have been worth more than the campaign would lose by this one clear example of flipping. And here, if you let cynical instincts run wild, there's no limit to the games that might be imagined. For what better way to demonstrate (accurately, again, for remember #1 above) that Obama is not beholden to the left than by this very visible fight that Obama doesn't cave in on. When I received the blast from Moveon, demanding that Obama reverse himself (again), it was absolutely clear that he wouldn't. For how could he reverse himself then, and avoid the tag of being tied to the left? And certainly (more cynicism) Moveon recognized this. What greater gift than a chance to act independently of a movement that (while good and right and true, in my liberal view) is not anymore a spokesman for the swing votes that will decide this election.
This decision cannot be explained as anything other than cowardly politics. There was no need to give a lame duck, sub-30% president more power (actually, to ratify the power he had already illegally seized), on a core constitutional matter. If Obama wants to show his independence from the left, he could do it with his support of Scalia's gun decision, which at least gives more liberty to the people, or the death penalty case, or any number of issues. The right not to be spied upon in secret by your government isn't a liberal value, it's an American value.
# But assume you reject #4 completely. Then one more thought: Isn't it time for Obama to resign from the Senate? Why should he allow the weird framing of issues that will come from this spineless institution to define his campaign? (Notice, McCain didn't even deign to show up.) Why not simply confess to his constituents that he can't do his job as United States Senator from Illinois while running for President of the United States. That the clarity of message necessary for the latter isn't consistent with the obligation of compromise required for the former?
As an Illinoisan, I would be much happier if I wasn't at 50% representation vis-a-vis the other states. Thankkfully, our other Senator actually upheld his oath to defend the Constitution.
# Finally, and 2bc: please, fellow liberals, or leftists, or progressives, get off your high horse(s). More on this with the next post but: it is not "compromising" to recognize that we are part of a democracy. We on the left may be right. We may be the position to which the country eventually gets. But we have not yet earned the status of a majority. And to start this chant of "principled rejection" of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).
Under this line of thought, wasn't the CTEA a "compromise"? I seem to remember someone thought it was an unconstitutional extension of copyright for the benefit of a few very wealthy companies, made by a corrupt Congress without a view to protect the public good. No parallels to this instant situation, I'm sure...
Dr. Lessig,
First of all, the fourth amendment is not a liberal issue or policy--it's an amendment to the Constitution of the United States, the rule of law in this nation. Secondly, Obama publicly announced his decision to vote against and support any filibuster of the the bill before he won the primary. Not only did he filp-flop, he flat-out lied. You may think you are seeing "struggle" amongst your friends in his campaign over what Obama himself has made a "liberal issue." What you are seeing is guilt at taking the power that has been held out to them. Maybe that's what leaders do, but I don't have to condone it by voting for them. Obama has ostracized me, not the other way around, when he made it clear that he did not want or need my vote. He better hope conservatives will vote for him.
For me, the worst part about this is that Obama is supposed to be a 'constitutional scholar'. If he knows the constitution really well, he should have heard about the 4th amendment. If he paid attention even remotely, he should have clearly seen that this is against the 4th amendment (if not the letter, IANAL, then at least against the spirit, which is more important to me).
So which way does he want to spin this? That he was mislead about what was in the bill (admitting he didn't read it very well)? That he really doesn't know much about the constitution afterall, and this scholar business is just political bluster?
Pissed off,
jan
Why Obama will lose this election.
So if you're upset with Obama because you see him shifting, you should actually be upset with yourself that you have been so careless in understanding the politics of this candidate.
Oh everybody knows his politics alright.
Obama's behavior so mirrors the image of Bush right now because Obama lies, just like Bush lies to give to corporation whatever they want, just the way Bush always does so I'm not sure what the message is here that you're trying to make. Bush doesn't represent conservatives, Bush represents corporate American and anybody else.
Obama simply shows that he can lie whenever corporations ask him to do it. But Bush has already secured the corporate vote, so Obama and other democrats are not going to get anything from AT&T and Verizon but a mere pittance since the Party of corporate constituency already belongs to the GOP. What Obama did was a suicide act since his election is dependent on netroots contributions, and those netroots believed that Obama was representative people, not corporations.
You want to call that "lefty hysteria" fine, but those lefty hysteria members won't pull out their wallets and give to a candidate that frankly, they feel does not represent them because they were stupid enough to misunderstand him. And now you see that Obama is already starting to having money problems. But this is exactly what happens to politicians that show loyality to corporations while dependent on netroot money - they lose. Obama is a fool that even conservatives middle people won't vote for now.
Why do I know this, because I'm an independent voter, that lives in a conservative community and like many of the conservative voters around me, I tried calling my Senators to tell them to vote against the FISA bill - and why is that? Because conserivatives like their US Constitution every bit much as any of you stupid lefties if not more. The phones were jamed with like minded conservatives. You see Bush doesn't represent conservative voters - he represents corporations exclusively and the Republican congress represent Bush - not conservative voters either and it is why the Republican Party vote enbloc and thus why the Republican Party is shrinking and hemorrhaging voters.
So you see, Obama didn't go middle - he went corrupt, same as Bush and even Bush wasn't stupid enough to violate his oath office in full view of conservative voters.
Echoing what someone else said - by what measure is this bill "progress"?
That's the giant hole in this argument.
Larry Lessig, please explain precisely how you think this bill is better than what we had before.
Kathryn in California,
I respect the points you're making. :-)
My answer to most of them is that I still maintain the Bush is the problem, not the phone comapnies. But I do have a more elaborate answer to your first point.
The response I would have preferred is to begin impeachment proceedings, not a civil suit against a phone company.
The other response I would have preferred is, as I said earlier, a marketplace response whereby customers switch their service to Qwest, since Qwest resisted the pressure from the Bush administration. That would be a MUCH more effective response than a civil suit in terms of hurting the other phone companies and sending a message to the phone companies that the public is really upset about what happened. But I must also say, if customers have NOT been switching to Qwest, then that shows that the public doesn't care much about this issue (at least not enough to switch services). I'd be interested in knowing if Qwest has gained customers over this issue or not.
As for the civil suit, you say it's brought forward by a non-profit organization that is not out to make millions for themselves. If so, that allays my fear that it's just the typical class-action suit brought forward by greedy lawyers that make millions while members of the class they claim to represent get a coupon from the companiy that was sued. But even so, it's still an example of our overly litigious society, where the first response to any problem is to sue (that's another reason I hate class-action suits).
Now, assuming that the goal of the suit is NOT to make the lawyers richl, what exactly is the goal of the suit? If it's like other class action suits, it'll be a coupon offered by phone companies to their customers, most of which won't bother to make use of. Is that really worth getting worked up about?
It's my understanding that the *real* reason many want to do the civil suit as a means to gather disclosure which would eventually lead to impeachment. That this is the last chance to really "get" Bush and bring him down, and that's why this is so important to some on the left. But that sounds like politicizing the legal process and/or the reverse, criminalizing a political dispute. Impeachment is really a political process, not a legal one. If you want to impeach, then do it up front rather than start some legal process only as a means to such impeachment. But I am so over any desire to stick it to Bush through impeachment or whatever, as it's too late for that. The best way to stick it to him is to elect a Democrat to the White House, even if you don't agree with everything that Democrat does.
This cannot be the same erudite Lawrence Lessig whom I heard speak at Princeton and with whom I have corresponded about embedded systems and open source. That person would hardly stoop (even in a blog post, which these days seems to equate to abandoning a call for reason) to calling those who differ with him "idiots" as a substitute for presenting arguments on why the new FISA bill with current amendments is the equivalent of "70% reduction in green house gases by 2015". It is saddening to see the effects of Obamaholism! Casts us Nader and Kucinich supporters in a better light without our having to say a word in defence.
I agree with the post. There is, however, another point I feel is important, which I have not seen addressed in any media or blog: those civil lawsuits were going NOWHERE.
That point is clearly illustrated by Judge Walker's decision last week in Haramain v. Bush, which Hysteric-in-Chief Glenn Greenwald (who bashes this post in today's column, btw) has been waving around like a flag. *After* holding that FISA preempts the common law, and thereby rejecting BushCo's claimed right to ignore the restraints of FISA, Judge Walker went on to explain in elaborate detail how FISA itself embodies “a host of obtacles” that make its civil remedy provision “a mostly theoretical but rarely, if ever, a practical vehicle for seeking a civil remedy for unlawful surveillance.”
Specifically, the court contrasts the provisions of FISA with those of the federal wiretapping act — which covers wiretapping for criminal investigations — and which does provide a practical means by which persons illegally spied upon can seek effective redress in court. The court, using an established principle of statutory construction, found that Congress’s having chosen NOT to model FISA on the federal wiretapping act — which was enacted 10 years before — means that Congress did NOT intend those same procedures to apply in the case of wiretapping for national security purposes.
In short, the court found that when Congress enacted FISA in 1978 it specifically designed the law to make it difficult for an unlawfully spied upon person to seek redress. That may sound fucked, and it may BE fucked — but the point I am making is that the ORIGINAL FISA does not “work just fine” from the perspective of protecting our Fourth Amendment rights. We didn't lose anything on Wednesday that we haven’t lost already.
Glenn realizes this, of course — and so, tucked into his rants against immunity, are rants against Congress for failing to “fix” the obstacles inherent in the current FISA law.
But I ask you: in today’s political climate, how could anyone possibly expect that to happen? If our side had managed to defeat telecom immunity, it would have been a victory squeaked through by the narrowest of margins — do you really think that Congress 2008 is going to pass a law making it EASIER to sue the government — or the telecoms — than it was in 1978?
And so to item 6 of the post.
e:
I think you misstate Judge Walker's discussion. His issue is not that redress is difficult under the statute, but notice of being surveilled is, thus making the ability to seek redress difficult. That's why the civil lawsuits are more important. The government, has managed to hide all of the evidence of its wrongdoing, and except for Al-Haramain, no one can get any info from the administration to establish standing. Because the document involved there is classified, Judge Walker will not allow it to be used to establish standing. But, the plaintiffs have to have standing before discovery, so unless they have evidence, they're dismissed. The government is not about to hand anything over, so that case is DOA.
The point of the case is that it is almost impossible to sue the government on FISA, because they can just hide everything from you, since there is no reporting requirement until you already establish you've been spied on. it's a classic catch 22.
On the other hand, the plaintiffs in Hepting have already gotten past standing, and have sued under a number of other theories, besides FISA. AT&T's former employee had leaked company documents, which are not classified. So the plaintiffs could and did establish standing. Discovery there was about to commence before this travesty.
In short, you're wrong. really really wrong. Obama et al have just killed our best chance to find the truth. The cases were by no means a slam dunk, but civil liability against AT&T looked a lot better than you portray.
I think you are missing an essential point.
Rectroactive immunity is against the constitution. It is against the fundamental set of laws that govern this country, a set of laws that our representatives are sworn to uphold. We are not talking about a political deal where he voted for giving subsidies to industry in exchange for getting funds for the elderly. We are not talking about voting to allow drilling off the coast of California in exchange for subsidies for development of more efficient solar panels. Neither of those are against the law. Retroactive immunity is.
The strong message here is that our representatives think they are above the constitution. That the laws that they pass are somehow better than the constitution. They are not. The constitution can be changed if they are unhappy with it, but not by just passing a law. I thought Obama got that, when he said that he would filibuster. I was wrong.
Where I end up is that it proved that Obama is just another politician. He might be better at public speaking than a lot of them, but when it comes to following up on the important things, he is just another politician.