Tuesday, July 29, 2008

Another Barack Obama Complaint

Okay, I started writing this post just after the final congressional votes on the latest FISA bill, but I decided to hold off on finishing it, because I was just too pissed to think objectively about it.

Now it has been a couple of weeks, and I can say with certainty that I am objectively pissed.

And it's not only because Obama went back on his word that he wouldn't vote to give the telecom companies retroactive immunity (which, by the way, is constitutionally questionable), but because it was unquestionably the wrong thing to do.

For a bit of background: after 9/11, the Bush administration asked (without a warrant) for phone records from the major telecommunications companies. Only one company (Qwest) refused to do so. In fact, there were reports that the government was also recording much of the internet traffic that went through AT&T. My conclusion: when my cell phone contract with AT&T runs out, I'm looking into switching to Qwest.

The Foreign Intelligence Surveillance ACT (FISA) is what regulates this sort of government activity, and for the record, it is just about the least strict law that has ever existed. For example, you can wiretap a phone call, wait 72 hours, then request a warrant from the FISA court after the fact. This court consists of several presidentially-appointed judges whose identities are secret. They then approve or deny the warrants, but details about the warrants themselves are secret, and there is no oversight. The standard of approval of these warrants is fairly loose; if there is some hint that a sliver of information concerning national security might be gained by the wiretap, the warrant is approved. The only information about the FISA court that is made public is when a warrant is approved or denied (though again, not what the warrant was all about). Of the tens of thousands of warrants that have been requested since the court was created in the '70s, only three have been denied. Not exactly your model of strict standards. And (though I'm not sure how this is possible) the "Patriot" Act loosened these standards even more.

To clarify that last statement, I never mention the "Patriot" Act without using either air quotes or real quotes.

So the years pass, the information about the government's requests comes out, and no less than 25 lawsuits are filed against the telecommunications companies. So what does the Bush Administration do? They insist that a bill be passed granting those companies retroactive immunity for national security reasons. Why go through a super secret court with no oversight that denies less than 0.01% of its requests when you can cover it up and then go back later and provide immunity to get yourself off the hook?

And, well, what did the democratic Congress do? They gave it to him. Now I don't believe they would have done that unless at least some of Congress's democratic leaders had been in on it from the beginning, and are trying to save their own butts. However, Obama had no excuse. He claimed that it was part of a compromise with the Republicans, but their concessions were very limited and consisted of (in part) mandates to provide oversight that they were already legally obligated to provide and hadn't. The bill would have passed without his vote. Polls showed that the majority of the population was against the bill. The only possible reason I can think of that Obama would vote for this is as a signal to the telecom corporations (and perhaps others) that he is willing to give in to their demands when he is President, and they need not be afraid of his populist message. Whether or not that is the case, I don't like it. The bill was wrong, and it was unconstitutional.

What makes it unconstitutional?

Section Nine, Paragraph Three of the United States constitution states that "No Bill of Attainder or ex post facto Law shall be passed." This directly follows the passage mandating Habeus Corpus, which I wrote about a few weeks ago. It seems Section Nine has been taking a beating as of late.

"Ex post facto" is latin for "after the fact". An ex post facto law is a law that changes the legal consequences of actions taken in the past, such as the legal consequences of the telecom companies providing records to the government. So there is hope. If one of those lawsuits I mentioned goes to the Supreme Court, there is a strong likelihood that they would overturn this part of the latest FISA bill. But I would rather that it had not been allowed to get that far.

Oh, and I shit you not: as I was in the middle of writing this post, I got a call from the Obama campaign requesting money. I had contributed small amounts to them twice last year. I don't make a habit of contributing to political campaigns, but I made an exception with Obama. I'm proud to say that today, I rejected them flat out and told them why. This is called voting with your wallet, and I am ecstatic that it worked out so well in this case.

Progress: 4.03%  Flight Time: 0:06:05

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