Column: Obama Drops The Ball On FISA Bill

This story was written by Robert Switzer, The Independent Collegian

Earlier this month, our fearless leader signed the "FISA Amendments Act of 2008." The American Civil Liberties Union is up in arms, with a lawsuit already filed. They're joined in their outrage by people all over the political spectrum, from Wisconsin's left-wing Senator Russ Feingold to former Republican presidential candidate Congressman Ron Paul. What brings a borderline socialist and a hardcore libertarian onto the same page? A firm belief that "1984" should remain a fiction rather than a prophecy.

Unfortunately, there's a glaring absence in this coalition of anti-fascist solidarity, the nation's so-called "most liberal senator:" Barack Obama. Mr. Obama not only voted for the bill, but voted for cloture, which ended the possibility of a filibuster effort.

Obama specifically said that he would oppose a bill including "telecom immunity," which this one did (meaning that corporations cooperating in the warrantless wiretapping program cannot be sued). He also said that he would support a filibuster.

Obama's vote on this bill has single-handedly cost him more support from the left than anything else. It's particularly disturbing coming from a former professor of constitutional law, and someone civil libertarians largely thought they could depend on to fight for privacy rights.

When I first read about the bill and heard Obama call it a "compromise," my immediate reaction was one of understanding. My intuition was that Obama and the other Democrats who voted in favor were giving up on the telecom immunity provision in exchange for a bill that was otherwise acceptable. I don't really care whether or not Verizon gets sued; what I want is a law that makes clear that what Bush was doing is not ok.

Upon further research, I found that this bill was not otherwise acceptable. It actually expands government power. For example, according to the ACLU, the bill "permits the government to conduct mass, untargeted surveillance of all communications coming into and out of the United States, without any individualized review, and without any finding of wrongdoing." As Senator Feingold put it, if you're calling a loved one in any foreign country (he used England as an example), that communication is no longer considered private.

Obama, who to his credit wrote an article responding to his critics on this issue, makes a big deal of the bill's "exclusivity provision." He writes that it "makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court." Yes, it does say that. But he needs to recognize that we are dealing with a president that not only thumbs his nose at FISA law, but one who has made more "signing statements" than all past presidents combined, which are short statements that explain the president's interpretation of the law he just signed. For example, when he signed an anti-torture bill a couple of years ago, he issued this signing statement: "The president, as commander-in-chief, can waive the torture ban if he decides that harsh interrogation techniques will assist in preventing terrorist attacks." Basically, he doesn't care what the law says, so we need to recognize that an "exclusivity provision" means nothing to him (and might not mean much to a President McCain either).

As should be clear by the name, this bill amends FISA, which was passed in 1978 and has been amended several times since. The basic idea of the law is that if the government wants to eavesdrop on the communications of an American, they need to apply for a warrant from a special court to do it. They can begin surveillance immediately, but they need to apply for that warrant within 72 hours. It's mostly a rubber stamp process; warrants are granted more than 99.9% of the time. It's a smple, effective method to make sure that the government isn't spying on us without cause.

In his first term, Bush decided that he was above the law, and authorized the National Security Agency to ignore the warrant application process. He then lied about that decision publicly in April of 2004. (Look up the video on YouTube.com.) When The New York Times finally broke the story in 2005, he then admitted to it and defended the program, accusing the Times of treason. And now in a tragic example of irony, he's signed an amendment to this law that he openly admits to ignoring. (What makes anyone think he'll follow it this time?)

We need to tell Congress how we feel about this. Barack Obama, in particular, needs to know that this is not a flip-flop that we will ignore. He took a great chance to score points with progressives and civil libertarians and instead pissed us off, taking sides with a criminal president and big business. I know I'm far from alone in my passion concerning this issue.