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Barack Obama and the Foreign Intelligence Surveillance Act Amendments: In Pledging to Work to Remove Retroactive Immunity for FISA Violations, What Kind of Action Is Obama Contemplating?


Wednesday, Jul. 2, 2008

The Democratic Party’s presumptive presidential standard-bearer, Senator Barack Obama, surprised many when he announced that he would support the legislation passed by the House of Representatives on June 20, 2008 amending the Foreign Intelligence Surveillance Act of 1978 (FISA). While the House legislation was called a compromise, it was virtually identical to the earlier, rejected proposals that the Bush Administration had requested and that organizations like the ACLU had fought for months – and continue to fight – to defeat.

In his formal statement, Senator Obama said that while the House-passed bill left much to be desired (here, I am paraphrasing his understatement), but he could live with it. He did add, however, that he remained unsatisfied with the provision granting retroactive immunity to those involved in violating the existing FISA law – in connection with the Bush Administration’s controversial “warrantless wiretapping” program, in which the Administration enlisted the aid of several telecoms in violating FISA. Thus far, that program has given rise to civil suits against the telecoms by private parties, but not to any government action.

Accordingly, Obama pledged to “work to remove this provision so that we can seek full accountability for past offenses.” (Emphasis added.) He then added further that, as President, he would take “any additional steps” he deemed “necessary to protect the lives – and the liberty – of the American people.”

What does Obama mean, exactly? No one is quite sure.

MSNBC Discussion of Obama’s Position on the FISA Amendments

Appearing on MSNBC’s “Countdown” on the evening of June 20th, while all this was breaking news, I was asked for my take on Senator Obama’s apparent flip-flop. I knew that Obama had vigorously opposed immunity earlier. (And I suspected Republicans would – as they have done – call him spineless for caving in to the fear of their using his opposition to call him weak on fighting terrorism.)

At the time, and giving Obama’s position the benefit of the conspicuous doubt his actions suggested, the following exchange ensued between “Countdown” host Keith Olbermann and myself:

OLBERMANN: Senator Obama‘s position on this confuses me. He loathes the telecom immunity, he says that he would fight it immediately and he would monitor it carefully as president. The vote though is next week. He better do that part of the fight quick. If this gets in through the Senate, there‘s no way to get it out again, is there? I mean, the history of this nation in terms of lost civil liberties is pretty bad about restoring them.

DEAN: Well, I spent a lot of time reading that bill today, and it‘s a very poorly-drafted bill. One of the things that is not clear is whether it‘s not possible later to go after the telecoms for criminal liability. And that is something that Obama has said during this campaign he would do, unlike prior presidents who come in and really give their predecessor a pass, he said, “I won‘t do that.” And that might be why he‘s just sitting back saying, “Well, I‘m going to let this go through. But that doesn‘t mean I‘m going to give the telecoms a pass.” I would love it if he gets up on the Senate floor and says, “I‘m keeping that option open.”

OLBERMANN: In other words, let the private suits drop and get somebody in there who‘ll actually use the laws that still exist to prosecute and make the actual statement and maybe throw a few people in jail.

DEAN: Exactly. And it looks to me, as I read this bill and talk to a number of people in Washington familiar with the bill, some who are involved in the negotiations, and they say, “You know - we just didn‘t think about this issue.” So, as it goes to the Senate, maybe Obama‘s got a shot to take, you know, a future look at this thing and not let them have the pass that they think they‘re getting.

OLBERMANN: That would be a nice symmetry to that—that everybody had been so lulled into a sense of complacency because of the Bush success on this that they‘ve left out anything that protected anybody legally, if you had a president who actually believed in the Constitution....

The FISA Amendments Do Not Provide Immunity for Criminal Violations

To date, nothing has happened. The Senate has delayed action on these amendments until after the July 4th congressional recess (thank you, Senator Russ Feingold), so I have taken a closer look at the House-passed bill and tracked its legislative history. It is clear not only from the language of the bill (which must be read in the context of other, related statutes to be clearly understood), but also from the legislative history, that there is absolutely no criminal immunity for anyone in these FISA amendments.

In addition, I spoke with the Washington office of the ACLU, which has been following the legislation closely while trying to limit its further rollback of prior protections of civil liberties. The ACLU agrees that there is no criminal immunity, and while this fact had been largely overlooked, Legislative Counsel Michelle Richardson said this point had been mentioned in passing in both the House and Senate during the debate. With a little more digging, I found that the sponsors, as well as the Bush Administration, also understand that there is no immunity in the House-passed bill from criminal prosecutions for violations by anyone.

The House-passed bill has provisions virtually identical to many in the earlier Senate-passed bill. No one in the Senate watches out for the best interests of Bush Administration better than Republican Senator (and former presidential candidate) Sam Brownback of Kansas. During the January 24, 2008 debate in the Senate, Senator Brownback noted, “The immunity provisions would not apply to the Government or Government officials. Cases against the Government regarding the alleged programs would continue. And the provisions would apply only to civil and not criminal cases.” (Emphasis added.)

Similarly, when the FISA amendments were being addressed in the House during the June 20, 2008 debate, Attorney General Michael B. Mukasey and Director of National Intelligence J.M. McConnell sent Speaker Pelosi a letter for the record analyzing the provisions. This letter stated, among other things, that: “The framework contained in the bill for obtaining retroactive liability protection is narrowly tailored. ... The liability protection provision does not extend to the Government or to Government officials and it does not immunize any criminal conduct.” (Emphasis added.)

Because this legislation addresses only civil liability, Senator Obama has a unique opportunity to show that his leadership as President would, in fact, bring a change to Washington. Indeed, he can both support the amendments now pending (for the reasons he stated), and make clear that as President he will request that his attorney general determine if criminal actions should be taken for the blatant violations of the criminal law. Actually, he has already said this, but in a larger context.

Since Obama Has Already Declared that He Will Hold the Bush Administration Officials Responsible for their Crimes, He Can Now Have It Both Ways: Support the FISA Amendments and Hold Miscreants Responsible

During the primaries, Senator Obama stated that, as President, he would not give his predecessors a pass for their crimes, which has recently become the informal custom. Obama was asked about this matter by a seasoned political reporter for the Philadelphia Daily News, Will Bunch.

Bunch wanted to know Obama whether his administration’s Justice Department "would aggressively go after and investigate whether crimes have been committed" by the Bush Administration. The discussion arose in the context of the uses of torture and other illegal means to fight terrorism, but Obama’s response was general and unequivocal. Bunch reported that Obama said:

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity.

You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in cover-ups of those crimes with knowledge [aforethought], then I think a basic principle of our Constitution is nobody[’s] above the law -- and I think that's roughly how I would look at it. (Emphasis added.)

If Obama Is a Man of His Word, He Should Place Bush Officials and the Telecommunications Companies on Notice of the Action He Will Take as President

Not everyone is aware of the statement that Obama made to Will Bunch, or the reality that there is no immunity from criminal prosecution under the FISA amendments. In fact, it is not clear if Senator Obama himself is aware of the limits of the immunity in the FISA amendments. However, if Obama is a man of his word, he should explain to his Senate colleagues that when elected President, he will “immediately” request that his attorney general investigate the criminal activity of the Bush Administration in violating the FISA statute, along with the telecommunications firms who aided and abetted these violations.

It certainly would not be unprecedented if an Obama Administration were to hold high officials of a prior administration responsible for their criminal activity undertaken in the name of national security. For example, former Nixon assistant to the president John Ehrlichman said that he acted for national security reasons when he approved a warrantless break-in at Daniel Ellsberg’s psychiatrist’s office; yet he was prosecuted, convicted, and sent to jail for his actions during the Ford Administration. During the Carter Administration, too, former CIA Director Richard Helms was convicted for lying to Congress, which he did for national security reasons; he was given a two-year suspended prison sentence and fined. Former Assistant Director of the FBI Mark Felt (later revealed to be Bob Woodward’s “Deep Throat” source during Watergate) was convicted for authorizing some nine warrantless break-ins of the radical Weatherman groups for national security reasons; while he faced ten years in jail, he was not sentenced to serve any time, but rather fined $5,000, and he was later pardoned by President Reagan.

If Senator Obama is going to honor the statement he made to Will Bunch, then he should place the Bush Administration and telecommunications companies on notice of his intentions. This will provide President Bush an opportunity to immunize those who broke the law at his request from criminal prosecutions, which he can do as long as he is President with his power to grant pardons. For Bush to issue a blanket pardon in this situation would be unprecedented, and it would offer Bush a chance at historical ignominy far exceeding what he already faces, and thus potentially become a powerful issue for the Democrats to campaign on during this 2008 election year.

Broader Meaning of a Blanket Pardon for “National Security” Law Breakers

If the civil suits that will now be dismissed under the FISA amendments had proceeded, it is questionable whether they could have been fully litigated, because they involved national security matters that no administration would disclose. Moreover, if those persons who have violated FISA at the request of President Bush are criminally prosecuted, it is not likely that any would be sent to jail (absent aggravating circumstances like those that existed in the case of Ehrlichman, who was involved in hiding information from the courts). But they all, particularly the telecoms, could face serious fines for criminal actions. Given the downside, it is not clear whether Bush would issue a pardon in this context.

If it were issued by Bush, however, a blanket pardon to his “national security” miscreants would require acceptance by them of the fact that they had broken the law, and thus an admission of guilt. Were Bush to issue such a remarkable pardon, it would, of course, cement his historical stature as several notches below even that of Richard Nixon, who refused to pardon those who (many “for national security reasons”) engaged in the so-called Watergate abuses of presidential power on his behalf. Not many presidents want to be viewed by history as worse than Nixon. And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch. It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.)

Bush is very politically savvy. He knows that a blanket pardon, or even the prospect of it, could give Obama and the Democratic Party a wonderful issue during the coming months of the general election. Most Americans are deeply concerned about Bush/Cheney’s conduct of foreign affairs and national security, which ignores American laws and treaty obligations. So if Bush is forced to pardon his national security zealots, or if GOP standard-bearer John McCain was forced to embrace such action (as he likely would be), it raises the issue of whether Americans now want to elect a president who is subject to the law, or endure another temporary monarchy which ignores it. And that is no small issue in this 2008 election.

In short, Senator Obama has much to gain by restating his position, unless his beliefs on the subject have changed. Conversely, Bush and McCain have much to lose if a blanket pardon becomes an issue. However, if Obama now has no stomach to enforce the criminal law, as he once proclaimed he would, he may pay a significant cost for balking. In particular, he is likely going to lose more than a few among his base of supporters who are upset with his flip-flop on the FISA amendments, for many of these unhappy supporters may currently take comfort in knowing (as few others know) that he could hold violators responsible for their criminal actions – and will retain that power even if the current legislation becomes law.

Of course, Obama can remain silent, which is the usual course of action for Washington politicians in these situations. But he will remain silent at the risk of making all his previous statements increasingly hollow, and his posture strikingly wishy-washy. And how refreshing it would be for him to act like a leader who believes we are governed by laws, not the whims of men.

What better way, too, for Obama to make clear that he will do what he said to protect the rights and liberties of all Americans, and to keep government officials and those who assist them fully accountable, than by making clear that those who violate the criminal laws that protect Americans’ freedoms will be prosecuted to the full extent of the law. What better time than this issue, as well, to learn if Barack Obama is a stand-up leader or a slick politician who dodges his own past words when they might prove to have real meaning for the future.

John W. Dean, a FindLaw columnist, is a former counsel to the president.

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