Obama change of heart on FISA bill generates an online rift

By Scott M. Fulton, III, BetaNews

July 2, 2008, 6:00 PM

With online activism one of the key factors behind Barack Obama's success, his new position on a key bill affecting the government's ability to wiretap Internet users is making even stalwart supporters rethink their own positions.

Immediately after the US House of Representatives passed compromise legislation that would amend the Foreign Intelligence Surveillance Act, the Washington Post was the first to quote Sen. Barack Obama (D - Ill.), the likely Democratic nominee for President, as siding with House Democrats including Majority Leader Steny Hoyer (D - Md.) in urging the compromise bill's passage in the Senate.

Sen. Obama's statement, which was initially carried on Post blogs and slowly made its way to general public awareness, immediately put him at odds with Senate colleagues whom he had sided with previously. Back in February, Sen. Chris Dodd (D - Ct.), himself a former Presidential candidate, led an effort to block any FISA legislation from passage that includes provisions where telecommunications companies may be granted immunity from prosecution, for assisting in anti-terrorism surveillance efforts authorized by the Justice Dept. or by the President.

At that time, Obama clearly stated his support for Sen. Dodd, saying, "I strongly oppose retroactive immunity in the FISA bill. Ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand...No one should get a free pass to violate the basic civil liberties of the American people -- not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed."

The latest revised bill does not grant blanket immunity to telcos -- something Obama did clearly say he opposed. Instead, it gives the FISA court -- a US district court in special session -- a means to grant immunity to a "person" if it can be proven that the "person" was under the impression that "he" was authorized to cooperate by the President or DOJ. The current compromise language compels the FISA court to make such a grant.

Senators voted last week to delay consideration of the revised FISA amendments bill until after the Fourth of July recess. At that time, Dodd said he would effectively re-introduce his previous amendment stripping the court-determined immunity clause, telling the Senate, "When and if FISA does come back to the Senate floor, I will offer my amendment to strip the retroactive immunity provision out of the bill. I implore my colleagues to support the rule of law and join me in voting against retroactive immunity."

It was about that time when Obama issued his statement, which officially placed him in a kind of straddling position: supporting the compromise, while simultaneously supporting amendments -- without saying which ones (at last count, there were three) -- that would strike the language at the heart of the compromise.

"I have...opposed the granting of retroactive immunity to those who were allegedly complicit in acts of illegal spying in the past," reads Obama's statement, which was not posted on his senatorial Web site. "After months of negotiation, the House today passed a compromise that, while far from perfect, is a marked improvement over last year's Protect America Act. Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance -- making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future."

But here is where Obama voiced his simultaneous support for the other side: "It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses."

Obama's later clarification of his position was quoted by blogger Michael Powell (no relation to the former FCC chairman) of The New York Times. "The bill has changed," Powell quotes Obama as saying. "I don't think the security threats have changed. My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people."

The quote appears in a blog post predominantly concerning Obama's apparent support for the death penalty in exigent circumstances, which would also put him at odds with earlier, more pointed viewpoints.

What appeared to be a show of support for both sides was interpreted by some Obama supporters as a backing down of his previous support for measures such as Sen. Dodd's suggested filibuster last February -- a suggestion which may yet see the light of day, and may yet garner support from such notables as Sen. Russ Feingold (D - Wisc.), Sen. Patrick Leahy (D - Vt.), and even Republican Sen. Arlen Specter (R - Penn.).

One result has been that one of the many activist-supported blogs hosted by Obama's own campaign Web site has become a nucleus of protest against Obama's new position, or lack thereof. One of those blogs has become entitled, "Second Thoughts."

"If Senator Obama wants to move toward the center to improve his chances of winning the general election, that's his prerogative," writes one of the blog's authors named Steven, an Indianapolis native. "However, such a move undermines my general impression of him as a man of courage and conviction.

"I've read some blogs that state that Democrats should focus on winning the White House rather than worry about Senator Obama's actions in the Senate. Once in office, the argument goes, he can focus on undoing the damage done by the Bush administration. I don't accept that argument. Senator Obama has the opportunity now to undo some of the damage by filibustering the FISA bill. If he doesn't have the courage to do it now, why should I believe that he will do it if he becomes president?"

Bloggers hosted by the Obama campaign are now urging the Senator to change his position and oppose the compromise outright, and are urging supporters to send him mass e-mails during the holiday recess. One online petition hosted by the campaign has collected more than 13,000 signatures thus far Wednesday afternoon.

The Electronic Frontier Foundation has added its voice to the growing disappointment and dissent, stating, "Obama reneged on his previous commitment to filibuster...Now, Obama is being attacked from the right for being a flip-flopper, and from the left for sacrificing civil liberties to political expediency."