To this day, many people identify mid-2008 as the time they realized what type of politician Barack Obama actually is. Six months before, when seeking the Democratic nomination, then-Sen. Obama unambiguously vowed that he would filibuster “any bill” that retroactively immunized the telecom industry for having participated in the illegal Bush NSA warrantless eavesdropping program.
But in July 2008, once he had secured the nomination, a bill came before the Senate that did exactly that – the FISA Amendments Act of 2008 – and Obama not only failed to filibuster as promised, but far worse, he voted against the filibuster brought by other Senators, and then voted in favor of enacting the bill itself. That blatant, unblinking violation of his own clear promise – actively supporting a bill he had sworn months earlier he would block from a vote – caused a serious rift even in the middle of an election year between Obama and his own supporters.
Critically, the FISA Amendments Act of 2008 did much more than shield lawbreaking telecoms from all forms of legal accountability. Jointly written by Dick Cheney and then-Senate Intelligence Committee Chair Jay Rockefeller, it also legalized vast new, sweeping and almost certainly unconstitutional forms of warrantless government eavesdropping.
In doing so, the new 2008 law gutted the 30-year-old FISA statute that had been enacted to prevent the decades of severe spying abuses discovered by the mid-1970s Church Committee: by simply barring the government from eavesdropping on the communications of Americans without first obtaining a warrant from a court. Worst of all, the 2008 law legalized most of what Democrats had spent years pretending was such a scandal: the NSA warrantless eavesdropping program secretly implemented by George Bush after the 9/11 attack. In other words, the warrantless eavesdropping “scandal” that led to a Pulitzer Prize for the New York Times reporters who revealed it ended not with investigations or prosecutions for those who illegally spied on Americans, but with the Congressional GOP joining with key Democrats (including Obama) to legalize most of what Bush and Cheney had done. Ever since, the Obama DOJ has invoked secrecy and standing doctrines to prevent any courts from ruling on whether the warrantless eavesdropping powers granted by the 2008 law violate the Constitution.
The 2008 FISA law provided that it would expire in four years unless renewed. Yesterday, the Senate debated its renewal. Several Senators – Democrats Jeff Merkley and Ron Wyden of Oregon along with Kentucky GOP Senator Rand Paul – each attempted to attach amendments to the law simply to provide some modest amounts of transparency and oversight to ensure that the government’s warrantless eavesdropping powers were constrained and checked from abuse.
Just consider how modest these amendments were. Along with Democratic Sen. Mark Udall of Colorado, Sen. Wyden has spent two years warning Americans that the government’s eavesdropping powers are being interpreted (by secret court decisions and the Executive Branch) far more broadly than they would ever suspect, and that, as a result, these eavesdropping powers are being applied far more invasively and extensively than is commonly understood.
As a result, Wyden yesterday had two amendments: one that would simply require the NSA to give a general estimate of how many Americans are having their communications intercepted under this law (information the NSA has steadfastly refused to provide), and another which would state that the NSA is barred from eavesdropping on Americans on US soil without a warrant. Merkley’s amendment would compel the public release of secret judicial rulings from the FISA court which purport to interpret the scope of the eavesdropping law on the ground that “secret law is inconsistent with democratic governance”; the Obama administration has refused to release a single such opinion even though the court, “on at least one occasion”, found that the government was violating the Fourth Amendment in how it was using the law to eavesdrop on Americans.
But the Obama White House opposed all amendments, demanding a “clean” renewal of the law without any oversight or transparency reforms. Earlier this month, the GOP-led House complied by passing a reform-free version of the law’s renewal, and sent the bill Obama wanted to the Senate, where it was debated yesterday afternoon.
The Democratic Chair of the Senate Intelligence Committee, Dianne Feinstein, took the lead in attacking Wyden, Merkley, Udall and Paul with the most foul Cheneyite accusations, and demanded renewal of the FISA law without any reforms. And then predictably, in virtually identical 37-54 votes, Feinstein and her conservative-Democratic comrades joined with virtually the entire GOP caucus (except for three Senators: Paul, Mike Lee and Dean Heller) to reject each one of the proposed amendments and thus give Obama exactly what he demanded: reform-free renewal of the law (while a few Democratic Senators have displayed genuine, sustained commitment to these issues, most Democrats who voted against FISA renewal yesterday did so symbolically and half-heartedly, knowing and not caring that they would lose as evidenced by the lack of an attempted filibuster).