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Court allows constitutional challenge to new FISA law

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March 22, 2011

In October, 2007, candidate Barack Obama — in response to the Bush administration’s demand for a new FISA law — emphatically vowed that he would filibuster any such billthat contained retroactive amnesty for telecoms which participated in Bush’s illegal spying program.  At the time, that vow was politically beneficial to Obama because he was seeking the Democratic nomination and wanted to show how resolute he was about standing up against Bush’s expansions of surveillance powers and in defense of the rule of law.  But in a move that shocked many people at the time — though which turned out to be completely consistent with his character — Obama, once he had the nomination secured in July, 2008, turned around and did exactly that which he swore he would not do:  he not only voted against the filibuster of the bill containing telecom amnesty, but also voted in favor of enactment of the underlying bill.  That bill, known as the FISA Amendments Act of 2008, was then signed into law by George W. Bush at a giddy bipartisan signing ceremony in the Rose Garden, which — by immunizing telecoms and legalizing most of the Bush program — put a harmless, harmonious end to what had been the NSA scandal.

Beyond telecom amnesty, the FISA Amendments Act also wildly expanded the Government’s power to conduct warrantless surveillance of telephone calls and emails.  In large part, the bill was intended to legalize the illegal Bush NSA program that had caused so much fauxcontroversy among Democrats.  As Yale Law Professor Jack Balkin put it:  “Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”; separately, Balkin contended that Obama voted for the bill because, as President, he himself would want the same powers Bush had to intercept people’s communications without bothering with court approval.

When trying to placate his numerous supporters furious over his reversal, Obama insisted he voted for the bill with “the firm intention — once I’m sworn in as president — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future” (that promise caused his then-large band of faithful followers to evangelize that Obama only voted for the bill to make sure he won the election, so that he could then use his majestic power to fix civil liberties abuses of the type he had just voted for; that was when people were still willing with a straight face to invoke the 11-dimensional chess justification for everything he did).  Needless to say, it would have been unhealthy in the extreme holding one’s breath for that “we’ll-fix-it-when-I’m-President” promise to be fulfilled, as — more than 2 years into his presidency — nothing like it has remotely happened.

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This article was posted: Tuesday, March 22, 2011 at 9:23 am

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