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By Pejman Yousefzadeh Posted in Barack Obama | Policy | Surveillance Policy | The Great Netroots Betrayal — Comments (4) / Email this page » / Leave a comment »

An agreement on surveillance legislation has been concluded between Congress and the Bush Administration. The details of that legislation can be found here:

The agreement extends the government's ability to eavesdrop on espionage and terrorism suspects while effectively providing a legal escape hatch for AT&T, Verizon Communications and other telecom firms. They face more than 40 lawsuits that allege they violated customers' privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks.

[. . .]

Under the surveillance agreement, which is expected to be approved today by the House and next week by the Senate, telecoms could have privacy lawsuits thrown out if they show a federal judge that they received written assurance from the Bush administration that the spying was legal.

The proposal marks a compromise by Republicans and the Bush administration, which had opposed giving federal judges any significant role in granting legal immunity to the phone companies.

The legislation also would require court approval of procedures for intercepting telephone calls and e-mails that pass through U.S.-based servers -- another step that the White House and GOP lawmakers previously resisted.

"It is the result of compromise, and like any compromise it is not perfect, but I believe it strikes a sound balance," said House Majority Leader Steny H. Hoyer (Md.), the lead Democratic negotiator in talks between lawmakers and the White House.

But overall, the deal appears to give Bush and his aides, including Attorney General Michael B. Mukasey and Director of National Intelligence Mike McConnell, much of what they sought in a new surveillance law.

White House spokesman Tony Fratto called the measure "a bipartisan bill" that "will give the intelligence professionals the long-term tools they need to protect the nation, and liability protection for those who may have assisted the government after the 9/11 attacks."

Read on . . .

The surveillance legislation has met with some angry criticism:

The sharpest critics of the administration's surveillance policies were not mollified. Sen. Russell Feingold (D-Wis.) said the legislation "is not a compromise; it is a capitulation."

"Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity," he said.

Caroline Frederickson, a lobbyist for the American Civil Liberties Union, said, "The telecom companies simply have to produce a piece of paper we already know exists, resulting in immediate dismissal."

The left-of-center netroots is up in arms over this legislation and much of their outrage is reflected by Glenn Greenwald, who argues that "[i]n the U.S. now, thanks to the Democratic Congress, we'll have a new law based on the premise that the President has the power to order private actors to break the law, and when he issues such an order, the private actors will be protected from liability of any kind on the ground that the Leader told them to do it -- the very theory that the Nuremberg Trial rejected." Greenwald also says that thanks to the Democratic decision to agree to most of the White House's terms for the passage of this legislation, "[t]he rage level is going to be quite high today and will only get higher as the day progresses." More Greenwald:

What's particularly amazing about this whole process is that the House leadership unveiled this bill for the first time today -- and then scheduled the vote on it for tomorrow. No hearings. Nothing. They all have less than 24 hours to "read" the bill and decide whether to eviscerate the rule of law and the Fourth Amendment. I recall Democrats long complaining that they were only given one day before being forced back in September, 2001 to vote on the Patriot Act, yet here they are -- even without the excuse of the 9/11 attack -- doing that to themselves. I'm sure their votes tomorrow will be the by-product of a very conscientious, thoughtful and diligent review of this lengthy bill -- just as thoughtful as Pelosi's review was before she whimsically pronounced that it's all just six of one, half dozen of the other.

Greenwald is also upset that "[n]ow that Democrats have agreed to this bill, the GOP isn't even bothering with the pretense anymore that this is a 'compromise.' Instead, they're rubbing the Democrats' noses in the fact that this was a full-scale capitulation." In an entirely separate post, Greenwald says "[s]urrendering and fearful: that's the face of the Democratic Party. It's how they show they're not weak."

It should be noted that Barack Obama--who has garnered an impressive amount of support from the left-of-center netroots, has announced that he will support the FISA compromise. Note the following proviso from Obama:

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. 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. But this compromise guarantees a thorough review by the Inspectors General of our national security agencies to determine what took place in the past, and ensures that there will be accountability going forward. By demanding oversight and accountability, a grassroots movement of Americans has helped yield a bill that is far better than the Protect America Act.

It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as President, I will carefully monitor the program, review the report by the Inspectors General, and work with the Congress to take any additional steps I deem necessary to protect the lives - and the liberty - of the American people.

Even Greenwald is forced to admit that this is a fig leaf of a promise from Obama:

Nobody should be fooled by Obama's vow to work to remove telecom amnesty from this bill. Harry Reid is already acknowledging that this "effort" is likely to to fail and is just pure political theater: Reid said: "Probably we can't take that out of the bill, but I'm going to try." The article continued: "Reid said the vote would allow those opposed to the liability protection to 'express their views.'"

(Emphasis Greenwald's.) Having so thoroughly disappointed the netroots on this issue--some would say "betrayed," of course--Obama will likely go back to asking them for money soon.