July 10, 2008  ·  Lessig

The hysteria that has broken out among we on the left in response to Obama’s voting for the FISA compromise was totally predictable. Some more cynical types might say, so predictable as to be planned. National campaigns are dominated by people who believe a leftist can’t be elected to national office. That means events that signal a candidate is not a leftist are critical for any election to national office.

But without becoming part of the cynical plan, some reactions to the outrage.

  1. Obama is no (in the 1970s sense) “liberal”: There are many who are upset by this who believe this (and other recent moves) shows Obama “moving to the center.” People who make this argument signal they don’t know squat about which they speak. You can’t read Obama’s books, watch how he behaved in the Illinois Senate, and watched how he voted in the US Senate, and believe he is a Bernie Sanders liberal. He is not now, and nor has ever been. That’s not to say there aren’t issues on which he takes a liberal position. It is to say that the mix of views he actually has and has had doesn’t map on a 1970s spectrum of liberals to conservative. He is not, for example, “against the market,” as so many on the left still make it sound like they are. He is for same-sex civil unions. So if you’re upset with Obama because you see him shifting, you should actually be upset with yourself that you have been so careless in understanding the politics of this candidate.

  2. Obama has not shifted in his opposition to immunity for telcos: As he has consistently indicated, he opposes immunity. He voted to strip immunity from the FISA compromise. He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important. Whether it is more important than telco immunity is a question upon which sensible people might well differ. And critically, the job of a Senator is to weigh the importance of these different issues and decide, on balance, which outweighs the other.

    This is not an easy task. I don’t know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).

  3. Obama’s shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise. However important holding telcos responsible is, certainly there is something more important that Congress could have done. E.g., if telco immunity were tied to a bill requiring a 70% reduction in green house gases by 2015, would it make sense to filibuster that bill?

    But second, even given it was a stupid promise, in my view, it was political mistake to change — even if it was the right thing to do from the perspective of a U.S. Senator.

    It was a political mistake for the reasons I’ve already explained: it was self-Swiftboating. This shift is fuel for the inevitable “flip-flop” campaign already being launched by the Right. Their need to fuel this campaign is all the more urgent because of the extraordinary “flip-flops” of their own candidate. So anyone with half a wit about this campaign should have recognized that this shift would be kryptonite for the Barack “is different” Obama image. Just exactly the sort of gift an apparently doomed campaign (McCain) needs.

    But again, to say it was a political mistake is not to say it was a mistake of governance. To do right (from the perspective of governance) is often to do wrong (from the perspective of politics). (JFK won a Pulitzer for his book about precisely this point.) So at most, critics like myself can say of this decision that it was bad politics, even if it might well have been good governance. Bad politics because it would be used to suggest Obama is a man of no principle, when Obama is, in my view, a man of principle, and when it is so critical to the campaign to keep that image front and center.

  4. Unless, of course, it was good politics: I actually don’t personally believe that this was a decision motivated by politics, because, again, I’ve seen the actual struggle of some who advised on this issue (and I wasn’t one of those few), but we should recognize, of course, that this decision to pick a fight with us liberals may well have been worth more than the campaign would lose by this one clear example of flipping. And here, if you let cynical instincts run wild, there’s no limit to the games that might be imagined. For what better way to demonstrate (accurately, again, for remember #1 above) that Obama is not beholden to the left than by this very visible fight that Obama doesn’t cave in on. When I received the blast from Moveon, demanding that Obama reverse himself (again), it was absolutely clear that he wouldn’t. For how could he reverse himself then, and avoid the tag of being tied to the left? And certainly (more cynicism) Moveon recognized this. What greater gift than a chance to act independently of a movement that (while good and right and true, in my liberal view) is not anymore a spokesman for the swing votes that will decide this election.

  5. But assume you reject #4 completely. Then one more thought: Isn’t it time for Obama to resign from the Senate? Why should he allow the weird framing of issues that will come from this spineless institution to define his campaign? (Notice, McCain didn’t even deign to show up.) Why not simply confess to his constituents that he can’t do his job as United States Senator from Illinois while running for President of the United States. That the clarity of message necessary for the latter isn’t consistent with the obligation of compromise required for the former?

  6. Finally, and 2bc: please, fellow liberals, or leftists, or progressives, get off your high horse(s). More on this with the next post but: it is not “compromising” to recognize that we are part of a democracy. We on the left may be right. We may be the position to which the country eventually gets. But we have not yet earned the status of a majority. And to start this chant of “principled rejection” of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).

    That taunt will be continued.

  • Larry D’Anna

    > Getting a regime that requires the executive to obey the law is important.

    How is the executive any less able to ignore this version of FISA than the previous one?

  • http://jacob.kramer-duffield.com jkd

    Several dozen amens, esp. to 6. It really gets back to that most obnoxious of tendencies in some corners of the left (esp. pre-2000), of believing that somehow one can be virtuously above politics. You play the game, you take your licks, you move to the next screen with a win or a loss, and then keep fighting for what you believe. But not staying in the game is just… beyond lame.

  • Matt

    Hmm. Interesting apology. You missed a couple of key points though. He did promise to filibuster this bill. He didn’t. You can try to explain it away as a stupid mistake, but he rallied the left around this and other issues. Now he’s abandoning that position. Your post here has the trappings of a reasoned and nuanced argument but amounts to nothing more than a justification for simple political posturing.

  • Marcus

    Sorry, but I have to disagree heartily on point #2. The new FISA law was all-around awful, even if you ignore the telecom immunity provision. FISA has worked for decades, and it wasn’t necessary to make it easier to get wiretaps. The FISA courts are effective, and provide some measure of judicial oversight. Not required under the current bill.

    Obama was afraid of looking “weak on terror” if he voted against this bill. The Dems have to stop being so afraid of disagreeing with the Republicans. Stand your ground, and you’ll get a lot more respect.

  • lessig

    An executive can always ignore the law, Larry. But Congress can make it clearer that he is ignoring the law.

    Matt, I think it is you who missed the key point. I agree that he promised to filibuster the bill. I said that. And I didn’t try to “explain it away”: I said it was a political mistake. It was a political mistake for the reasons you said. It was also a political mistake for the reasons I said. But as well as a political mistake, it could well have been (a) the right thing to do from a governance perspective, and (b) not a political mistake (if you accept, as I don’t, that this was a political move to distance himself from the left)

  • Matt

    So if it was perhaps the right thing to do from a governance perspective what would have been your position in this specific sense if he had voted against the compromise? Would this have been perhaps the right thing to do as well? Or would voting against it have been a poor decision in this respect? You make great points, but I feel you are taking this stance because you’re a little irritated at the “hysteria” and not the reasons behind it. Why is the ACLU taking about a full-page ad? I don’t think it’s because they’re “hysterical.” Thank you for a good counter-point, though.

  • KD

    To me, the essential problem is that he’s essentially continued the status quo of the past eight years using reasoning couched in the language of faux terror in a situation in which he could have afforded to take a principled stance without impacting the passage of the bill, not that he went back on a promise to filibuster a bill. He’s cast himself as a candidate for change, yet continues to fail to deliver it. That has nothing to do with his liberal status (which is pretty flimsy anyway).

  • http://sethf.com/ Seth Finkelstein

    1) While Obama is in fact far more centrist than many activists imagined him to be – and this is no secret – I’d say the political chestnut that he “ran to left” for the Democratic party primary is basically true.

    2) That is, he decided this was the best deal possible. I don’t hold it against him myself. It does, however, represent a compromise against principle.

    3) The flip-flop ship HAS SAILED with rejecting public financing. FISA is a very minor issue to the general populace. It’ll be forgotten broadly in a few months. But the rejection of public financing is much more significant. McCain can hammer him throughout the campaign, every time money is mentioned – which will be frequently.

    4) I don’t think this is a “Sister Souljah” – those involve a deliberate decision by a candidate to kick a powerless member of the base. It reads more to me like Obama’s campaign just wishes this would go away.

  • Lance

    > “He has promised to repeal the immunity as president. His vote for the FISA compromise is thus not a vote for immunity.”

    He voted for this under the assumption that he will be elected President? Seriously? Please tell me that didn’t factor into his decision. Talk about the politics of hope…

    Virtually any terrible vote could be justified this way and in my eyes this argument as bad as the “If the President orders it then it is not illegal” argument peddled in recent years.

    But there is good news. We could retire the “I was for it before I was against it” meme with “I only voted for it because I was against it”!

  • freemansfarm

    Lessig:

    “I agree that he promised to filibuster the bill. I said that. And I didn’t try to ‘explain it away.” I said it was a political mistake.”

    It was more than merely a “political mistake,” Larry, it was a direct, clear, incontrovertible breaking of a solemn pledge. As was the public finance decision. In layman’s terms, Prof, they are both LIES. So,yeah, you are trying to “explain it away” when you call it merely a “political mistake.” The rest of your gobbledygook is too clever by half and irrelevant anyway. Your candidate is a LIAR. End of story. Full stop.

    People don’t like liars, Lar, maybe that’s why they get “hysterical” about it.

    The point, doofus, in case you still don’t get it, is that your candidate, the man who, for no good reason whatsoever and in the face of all the evidence, you chose to believe was “not a politician,” is, in fact, the consumate full-of-shit, deny- today-what-he-said yesterday, change with the wind, triangulating, shifty, slippery, and just plain flat out dishonest, politician. Live it, learn it, love it, grok it, own it!

    You were simply wrong about Obama, Prof. You were suckered, played, okie-doked, whatever term you prefer. Not surprizing, really, politics is not your specialty. I suggest you go back to your law books, before you make yourself look even stupider than you do already.

  • Jeff

    You lost me when you said that the new FISA bill was progress. I think that Balkin and Lederman have ably demonstrated that it is not, and that far from setting a higher standard, it just gave Bush what he wanted & ratified his administration’s past actions (balkin.blogspot.com). The telecom immunity is a red herring.

  • Charles

    Re: point 6:

    For me, this isn’t about whether or not Obama is a ‘pure’ liberal or leftist or progressive (as I’m not any of those myself). And it isn’t about ‘principled rejection.’ It’s about no longer voting for politicians who sell my fundamental rights as an American downriver in order to get elected.

    That isn’t a matter of principle. It’s a matter of strategy. I will not vote for people who screw me that way, just as I won’t feed a dog a biscuit when it craps on my rug. My refusal to reward that behavior isn’t a ‘principled rejection;’ it’s a refusal to reinforce bad behavior.

    –Charles

  • http://www.socialsecuritybullshit.com Steve Baba

    “Isn’t it time for Obama to resign from the Senate? “

    You must be hanging around California liberals too much or talking to like-minded people, but McCain is far from doomed, which is why Obama is moving to the center, and anything can happen in politics.

    Personally, Obama might want a job if he loses, and politically I would think that liberals would want a platform for a good public speaker. Not to mention, Obama could always build up his political resume with accomplishments.

  • B.Dewhirst

    He has taken people’s money and run.

  • http://www.chicagocorporateattorneys.com Nick Smith

    The essential problem is that he’s essentially continued the status quo of the past eight years using reasoning couched in the language of faux terror in a situation in which he could have afforded to take a principled stance without impacting the passage of the bill, not that he went back on a promise to filibuster a bill.

  • http://40yrs.blogspot.com Matthew G. Saroff

    Sorry, but I have to call bull on your essay.

    Barack Obama said that he would filibuster any FISA update that included immunity 6 months ago. He voted for cloture.

    He lied.

    If Obama loses to the sick pathetic old man, we can trace his loss to today’s vote, as we can trace Hillary Clinton’s loss in the primaries to her war authorization vote.

    The strength of Obama’s movement is not their numbers, but their enthusiasm, and he made a cowardly decision, and has, at least for now, deflated the enthusiasm of some if not most, of his supporters, at least in the near term.

    What’s more, he did it for nothing, because his vote will not change the Republican attack ads one bit.

    It was cowardly and stupid.

    To quote Tallyrand, “It was worse than a crime; it was a mistake.”

  • planetmcd

    Professor Lessig,
    I take your point that an executive can always ignore the law, but what part of the original FISA bill was murky with regards to the the requirement for court authorizations for wiretaps on US persons?

    I just read through the Title 50, Chapter 36 and it seems pretty clear to a lay reader like myself that a court order is required.

    Further it seems to spell out specific penalties for violating that law.

    I believe Obama to be a better candidate for president that McCain, but to diminish criticisms of Senator Obama’s change of stance on this matter is of grave concern.

    I, among many, believe that this bill diminishes our 4th amendment right against unreasonable search and seizure, while simultaneously hampering the investigation of government misconduct.

    Arguing the merits of the bill, you could argue that the bill does not do this, that concerns about this are over hyped, that there is more good in this bill that it is worth the trade off.

    If after a reasoned debate you come to the conclusion that this is indeed a bill that dramatically hampers the fourth amendment right and the trade offs are not worth it. It is incumbent upon you to raise question about legislators who support such a bill. What support of the abridgment of constitutional rights merit serious reconsideration of the quality and capability of a legislator commitment to uphold the constitution? That question is all the more important when that legislator will be the next executive. Benefiting from the abridged liberties. If they failed in or willfully undermined their duty to uphold the Constitution, should that not be considered in debating their merits as an executive?

    Make no mistake, Barak Obama voted for this bill. He approved it. Whatever he may have said, he voted for it. If it is an abridgment of our fundamental rights, he approved that. If there is other good in this bill that outweighs this capitulation, what is it? His approval of the bill undermines his credibility in general as he opposed this bill earlier. Furthermore, if he had staunch convictions about the propriety of this bill before he was the presumptive nominee, and was unable or unwilling to sway fellow Democrats after he became the party figurehead, it highlights either a failure in convictions or a failure in leadership (or a change in the facts surrounding the bill, but I do not believe that to be the case).

    If you’re attempting to argue that he is not a worse than John McCain as a candidate, I agree, and that better him than McCain is the lesson of Bush/Gore/Nader. But this recent tacking Republican indicates he’s trying to lose a race to the bottom rather than win a race to the top. I’m realist enough to know that I’d prefer to pull the lever for him in November, but given this reversal, but upset about the democratic congress’s failure, his included, to know I’ll need a shower after.

    Oh, and to allay concerns about unwarranted surveillance, I’ll have to remember not to email or call any Middle Eastern friends and forget that to intercept and monitor “foreign” traffic, the government will need to intercept all traffic to ascertain which is which. No doubt they won’t look at the domestic traffic in the process, and I’m sure we’d be able to find out if they did to keep them honest.

  • Howard

    He has promised to repeal the immunity as president.

    Can you give a citation, I don’t see this in the news reports. How will he do this? The immunity is now law. I don’t think he can do it by executive order (isn’t that what we complain about Bush doing?) Is he planning on passing a new law through Congress that “ungrants” this immunity? Can the government do that?

  • Kristian Z

    But we [the left] have not yet earned the status of a majority.

    Actually, the left is a huge majority if you look at popular opinion on actual issues. Take health care, the economy, the Iraq war or environmental issues, just to pick some issues of major importance. The public is overwhelmingly to the left on these issues. In a real democracy, politics would reflect that. In a real democracy, we would have at least one of two presidental candidates campaigning on policies such as single-payer public health care, tax raise for the wealthy, a non-imperialistic foreign policy and big investments in green energy.

    But as usual, what we get is one extreme-right and one centrist-right candidate, and a election decided by the media and the public relation industry. And the majority of the population (ie. the left) continue to be ignored.

  • http://www.openleft.com Matt Stoller

    But again, to say it was a political mistake is not to say it was a mistake of governance.

    Leaving politics aside, the FISA bill was a mistake of governance, a deep betrayal of the rule of law and of progressive principles. That was not a position of ‘the Left’ but of a wide swath of civil libertarians on both the right and the left. Bob Barr, who led the impeachment charge against Clinton, has made this an issue in his campaign for President. More to the point, there is no wide pro-telecom movement in this country; Obama didn’t vote as the pubic wanted him to vote.

    I simply can’t understand why it is so important to smear and belittle ‘the left’ who worked to stop this monstrosity from going through. No major opinion leaders on the left are suggesting they won’t support Obama in the general against McCain, nor is anyone on the left anti-market. If you find anyone who is sparking this outrage that is actually arguing that supporting Nader is a smart strategy, quote and argue with them. Otherwise, false generalizations do a grave injustice to your argument.

  • http://happening-here.blogspot.com/ janinsanfran

    So now an enthusiasm preserving for the rule of law rather living under the arbitrary dictates an executive, even an elected one, constitutes hysteria? That’s a posture close to giving up on the Enlightenment. Come on, tryng to get approval for Obama is not worth that.

  • http://happening-here.blogspot.com/ janinsanfran

    Preview should be my friend. Sorry.

    So now an enthusiasm for preserving the rule of law rather living under the arbitrary dictates an executive, even an elected one, constitutes hysteria? That’s a posture close to giving up on the Enlightenment. Come on, tryng to get approval for Obama is not worth that.

  • Cascadian

    Lessig makes a good argument here, that puts Obama’s FISA vote in context. The one big mistake I see in his reasoning is the following:

    “securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize…what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.”

    My understanding is that if no legislation had been passed, we would return to the pre-Bush FISA courts, which “[required] the executive to obey the law,” even if those requirements were pretty thin. So there was no need to secure amendments to new FISA legislation because that new legislation was wholly unnecessary. The FISA courts already had arguably too much discretion, and only rejected warrants in five cases over 30 years.

    I think the problem here is that opponents to new FISA legislation hung too much of their opposition on the immunity provision, which was only one reason why the legislation was bad. The reality is that the entire legislation was unnecessary.

  • bipolar2

    worst foto-op of 2008, 4th July: Shrub dared enter Mr. Jefferson’s home.

    Recessional*: the Rotting Legacy of 40-43 to 44

    1. Better-defined imperial limits: in distance, treasury, projection of power
    2. Pox Americana harassed at every frontier supply line.
    3. Richer rich, poorer poor, dying middle.
    4. Tyrannical social control erasing living memory of a democratic republic.

    Those wretched ephemeral babblers lusting after the purple in ’08 notwithstanding, a slide into the abyss can only be slowed not reversed.

    Meanwhile xian dominionism and GOProto-fascism pump their ideological excrement into empty heads obsessed with their own folly-driven gasoline costs. (The new KYSS — Kill your SUV, stupid.)

    I applaud Little Bush our postmodern Caligula. The Bushite regime’s catalysis of imperial rot is not necessarily a bad thing.

    The ancient Romans knew all about us. “Those whom the gods wish to destroy, they first make demented.”

    bipolar2
    © 2008

    * Rudyard Kipling’s faux-xian anxieties of 1897 bore much strange fruit in 1914.

  • http://anal0g.org Jared Burke

    Being “Naderesque” is a good thing. Suggesting that we as a country have to be centrist before we can be leftist is ice cold bologna. Conservatism leads to conservatism, liberalism leads to liberalism, and “centrism” leads to “centrism”.

    It’s foolish to think that if a lefty candidate pretends to be centrist to get into office everything will be fine after that. It’s called a backlash and it’s what Republicans are seeing right now. Bush had to pretend to be a centrist to get elected, and once he did it was an 8 year neo-con orgy. But now it’s coming to a crashing halt and the pendulum is swinging back.

    Why would it be any different for a Democrat? If Obama pretends to be a centrist just to get in, we get an 8 year liberal orgy (Ooh! Sounds like fun) and then the pendulum swings back. The nation just swings back and forth and never progresses to the left.

    Take a lesson from the gay community. If you want the nation to accept homosexuality, it starts with pride. If you want the nation to move left, have some pride it in. You’re a lefist and you’re right. Conservatives and centrists are generally wrong. Why be ashamed of it?

    I’d much rather be a Nader and lose over and over with my ideas than win with somebody else’s.

    In regards to #5.. As an Illinoisan who voted for Obama I would be furious if he resigned from the Senate. I sure as s**t didn’t vote for that. He took an oath of office, much like he’ll take on inauguration day. Some things, like duty and commitment, are more important than winning.

    Seriously, Lawrence.. You’re sounding kind of “Naderesque” in a crazy way, lately.

  • Anon

    Lessig, this is clownish. Obama swore up and down that he was against the spying:

    “This Administration has put forward a false choice between the liberties we cherish and the security we demand. When I am president, there will be no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war. Our Constitution works, and so does the FISA court.”

    And then he did the opposite – he sided with the Republicans to enable a regime of warrantless wiretapping of all Americans with no oversight whatsoever.

    Lessig wrote: “The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.”

    That is perhaps the most hackish thing you’ve ever written. I have respected your work a great deal – I’m one of the people you sent galley drafts of your books to – and I just lost two notches of respect for you. FISA, 1978 edition, required the executive to obey the law. In fact FISA, 1978 edition was written solely to restrain the executive. FISA, 1978 edition, was pissed upon by the Bush administration. The remedy, as promulgated by Barack Obama: immunize all the lawbreakers from penalty, sweep it under the rug, and going forward, avoid problems by making it legal to wiretap everyone without warrants – literally, to shape the law around the actions which the Bush administration desires to perform. There is literally no honest way that the FISA amendments just passed can be described as requiring the executive to obey the law. Congress’ laws are obeyed, or not. When they are not, writing a law that says “obey me this time!” and exempting from punishment everyone involved is simply the weakest response possible. There is no response Congress could have made that would be LESS designed to make the executive obey the law than what they did do. Future Presidents who used to be uncertain or fearful about breaking the law are now quite certain that they need have no fear of doing so.

    My advice to you – personal and direct – is to write no more about Obama. You are too biased to write honestly about him, and since writing honestly is something you wish to be known for, this is tarnishing your legal reputation.

  • Pepe

    Above I see many posts that illustrate the left at its most idiotically self-righteous. To say that a statement made by a campaign official is the equivalent of a “solemn pledge” is downright stupid. I hope nobody actually lives their lives in such a way that every utterance is a “solemn pledge”. Not all promises are “solemn pledges” (in fact, almost none of them are), and are frequently broken if circumstances change. Those that don’t understand that need to grow up. The new FISA bill is much stronger in court oversight than the previous one was and stronger than previous drafts were, and this is worth forfeiting the ability to sue a phone company for caving in to pressure by the Bush administration.

    Here’s a point I want to make: The far left and the netroots are not Obama’s “base”. His real base is much bigger than that. Obama didn’t run as a left-wing extremist in the primaries. Those that wanted a left-wing extremist had Kucinich and Edwards to choose from, and most of them did indeed choose Edwards. All the left-wing blogosphere I read generally supported Edwards, only getting behind Obama after Edwards dropped out after South Carolina. Up to that point, Obama’s delegate haul in the early states had little to do with support from the far left netroots who were supporting Edwards. By the time the netroots got behind Obama after Edwards dropped out, the Obama train had already left the station, things were already in motion for Obama to win massive delegate hauls in February (which secured him the nomination), so the netroots late-comers can claim no credit for that. To conclude, the far-left and netroots didn’t deliver the nomination to Obama, so he’s not beholden to them and isn’t going to respond to their demands to jump by saying “How high?” Don’t like it? Then feel free to go cut your nose off to spite your face by voting for (the now sadly race-baiting) Nader.

  • Sean

    Larry,

    I think your argument is very nuanced, but I want to call specific attention to the hypothetical you propose regarding an otherwise more agreeable bill having telecom immunity attached to it. My understanding is that you think Obama’s promise to filibuster was a stupid move – but, in the context, I think his promise is understandable and I feel that he still could have followed through on it.

    What makes the promise to filibuster understandable? It was motivated in a different political climate, one during which Edwards and, to a lesser extent, Dodd, were running to the left of Obama and Clinton in policy proposals and forced them to respond. I’m not implying that Obama or his aides made a conscious or intentional decision to switch on this promise (I don’t buy the “evil and plotting politician” image anyways), but I am arguing that it is unfortunate the promise was broken in a direction towards the center. Throughout the primary season, the netroots were largely divided (mostly between Edwards and Obama, but some Dodd and Clinton supporters as well). So, in the same way, the hysteria is understandable as well – and it’s just as much disappointment in ourselves and our ability to evaluate which candidate would most aggregate our interests. Another reason that I understand the hysteria online is that the progressive movement in this country needs a spokesperson almost as much as it needs a winner. I think there is a significant portion of the left online that believes it is just as important, from a cultural and paradigm perspective, to have a political -leader-, such as a presidential candidate, that is unafraid to stand strong for something (progressive and) unpopular. So I largely understand why Obama made the promise, why he may have broken it, and why the left is outraged.

    But I don’t think I accept that he had break his promise to filibuster. First, invoking your greenhouse bill hypothetical, couldn’t Obama and the Democratic congress filibuster that bill knowing that their political fortunes are extremely likely to improve in the very near future? And that they could probably pass a greenhouse bill without the telecom immunity in January? In essence I would argue, given the political climate and context, the only justification I could accept from Obama is if a bill came through that simply was too time-sensitive for Democrats to put off until January -BUT-, at the same time, the Republicans could afford to put such legislation off and thus force the Democrats to make a tough decision.

    I hope that made some sense.

  • Samantha

    Obama isn’t a leftist who is shifting right, he’s a centrist who played left to get all those wacky kids excited enough to walk precincts and nostalgic boomers hopeful enough to open their wallets. Now that he’s locked up the nomination, he can be himself again, leaving both groups disillusioned. Dr. Lessig, as with many others, attempts to protect himself from cognitive dissonance by making up convoluted (or “nuanced”) excuses for this betrayal, even though the situation can be summed up neatly with one of his trademark single word PPT slides–POLITICS.

    P.S. I hate to be a member of the word police, but since we’re friends on the left, I do feel duty bound to share that “hysteria” has some pretty nasty-sexist connotations. Perhaps you meant angry and disappointed?

  • freemansfarm

    Pepe:

    “Above I see many posts that illustrate the left at its most idiotically self-righteous. To say that a statement made by a campaign official is the equivalent of a ‘solemn pledge’ is downright stupid. I hope nobody actually lives their lives in such a way that every utterance is a ‘solemn pledge.’ Not all promises are ‘solemn pledges’ (in fact, almost none of them are), and are frequently broken if circumstances change. Those that don’t understand that need to grow up. The new FISA bill is much stronger in court oversight than the previous one was and stronger than previous drafts were, and this is worth forfeiting the ability to sue a phone company for caving in to pressure by the Bush administration.”

    As the auhor of the “downright stupid” comment about the solemn pledge, all I can say is “Wow.” Could you be anymore disingenuous than this, Pepe? Here is the link that provides the background to the “statement” made by the “campaign official.”

    http://tpmelectioncentral.talkingpointsmemo.com/2007/10/obama_camp_says_it_hell_support_filibuster_of_any_bill_containing_telecom_immunity.php

    And here is the statement itself:

    “To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.”

    (1) Burton, the man who delivered the “utterance,” is not merely a “campaign official,” he is uniformly described as Obama’s official spokesperson.

    (2) This was no mere “utterance” or “statement.” It was just what I called it: a pledge. The TPM article shows that this was not some off-the-cuff statement. Rather than try to paraphrase the description of the circumstances in which it was made, let me just quote the article:

    “As we reported here yesterday, MoveOn and a dozen top liberal bloggers were preparing to wage an aggressive campaign today to pressure Obama and Hillary to say that they’ll support Chris Dodd’s vow to filibuster any Senate FISA bill containing telecom immunity. And late yesterday both Obama and Hillary put out statements saying that they’d back Dodd’s threatened filibuster of the current legislation that’s just come out of the Senate intel committee.

    “Those statements, however, lacked the clarity that immunity opponents have been looking for, so today the MoveOn and lib blogger campaign has been in full swing. MoveOn emailed members this morning urging them to call Obama and Hillary and…

    ‘Tell him/her the public is counting on him/her to filibuster any bill that gives immunity to phone companies that broke the law.’

    “Now we have Obama’s answer: He’ll support a filibuster of any such bill.

    “When informed of Obama’s decision, MoveOn expressed relief. “Excellent — this is the kind of leadership we need to see from the Democratic candidates,” MoveOn spokesman Adam Green told Election Central. ‘Dodd, Biden, and Obama all agree. Will Clinton get on board?’”

    A “pledge” is exactly what was sought, and what was given. . . “To be clear: Barrack will support a filibuster of any bill that includes retroactive immunity. . .”

    Got that, Pepe? “To be CLEAR” and “Barrack WILL support” and “ANY bill that includes. . . ” That’s the language of a pledge, not a mere statement. Not a conditional prediction of what the Senator might do, but a solemn pledge of what the Senator will do.

    (3) Pepe himself seems to understand this, as he also uses the word “promise” to describe the “statement.” As far as I know, the terms “pledge” and “promise” are pretty much synonimous.

    (4) Pepe claims that the “circumstances” have changed between the pledge (oh, excuse me, “promise”) and the vote, and that this year’s bill was better than last year’s. All of that may be true, although I doubt it, but it’s irrelevant in any case. The point is that Obama pledged (oops, there’s that word again! sorry, “promised”) to support a filibuster of “ANY bill that includes retroactive immunity. . .” This bill contained retroactive immunity, and Obama did not support the filibuster. Therefore, he broke his promise, went back on his word, made a liar out of himself, whatever formulation you like.

    (5) Accordiing to Pepe, though, even promises are “frequently broken” and only children think otherwise. That may be true in some circles, Pepe, but where I come from, people strive to honor their commitments and keep their word. And, yeah, this applies to “grown ups” as well as children.

    (6) Obama has a pretty thin record. Most of his appeal is based on what he promises he will do, rather than pointing to what he has done as proof that he deliver more of the same. What good are all those promises if they can be as easily discarded as this one?

    (7) As Professor Lessig’s comments over the past couple of days have made painfully clear, another large part of Obama’s appeal has been his supposed embodiment of a “new kind of politics,” based on “hope” and “change” and “unity” and treating the voters with respect and so forth, but that appeal pretty much goes out the window when Obama resorts to the same-old-same-old of parsing pledges into “utterances,” claiming those “utternances” are “no longer operative” and generally talking out of both sides of his mouth. No one forced Obama to make these themes the centerpiece of his campaign, if he is now being held to a higher standard than that of a typical politician, he has no one but himself to blame.

  • P J Evans

    To say that a statement made by a campaign official is the equivalent of a ‘solemn pledge’ is downright stupid.

    No, the solemn pleadge was the oath he swore when he took office. Which he just broke, along with most of the rest of Congress.
    I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

    I didn’t expect liberal from him, but I did expect him to understand what he was voting on, and I ahve yet to see any statements from him that reflect that understanding.

  • Dan

    One problem with this whole analysis about “left – right – center” is that it is a fiction and in fact empirically demonstrated to be wrong by cognitive scientists.

    The realm of political values is not linear. It’s more “polar” in the sense that people can range closer to progressive or conservative notions (think” latitude) on a wide range of issues (think: longitude). Lakoff’s favorite recent example is the comparison of Chuck Hagel and Joe Lieberman who disagree on just about everything, but because they both “defected” from the consensus views of their respective ideologies on Iraq, they are described as “moderates” as if there were some well-defined center or even a well-defined “marginal vote,”

    There isn’t. And saying it over and over again won’t make it so.

    There is a whole world of “shades of purple” among independents and other swing voters who are not ideologically ossified. Triangulation in the linear Clintonian sense is a flawed model , just as the “Overton Window” that the conservatives have used to try to shift the public consensus is a flawed explanation for why their techniques worked in some respects.

    There’s a lot of “gotcha” politics going on in these discussions, and that may speak to some voters, which is why it was a political mistake for Obama to (1) make an unwise promise and (2) then reverse it. Obama is not a hugely experienced politician. One might well expect him to make mistakes from time to time.

    His strength will be shown if he can respond to his mistakes by correcting them as best he can and avoiding them in the future. So far he has shown himself to be a quick study, and to be running a generally nimble campaign that still seems fairly unified and coherent in organizational terms, unlike McCain’s cult of personality and reputed style of leadership by fiat.

    I’m sure Obama is learning a whole lot from this episode. Depending on what his expectations were, it may either surprise him or confirm his thinking, but either way there is a ton of data here to digest and and inform future decisions.

    I think Larry’s idea that Obama should resign from the senate now is very interesting (I hadn’t considered the option but this is certainly not unprecedented). Senatorial and presidential governing are different beasts. It’s a riskier step (if you lose you gotta go look for a job), but maybe with the celebrity that comes from such public prominence he shouldn’t worry too much.

    It would be a bold move whatever way you look at it.

  • Joel

    Dear Larry,
    Nobody’s perfect; not even Obama. I feel that your going to bat for him on this for him doesn’t meet my need for authenticity. Please be open to rethinking your stance on this issue.

  • Joe Buck

    It’s not hysteria to care about the Constitution; I’d expect you of all people to understand that. The retroactive immunity isn’t even the worst provision; the acceptance of general warrants, in direct violation of the Fourth Amendment, while setting up Kafkaesque conditions so that no one can challenge anything in court, is a disaster.

    At minimum, Obama could have kept his previous promises by voting against cloture and against the final bill.

    I will still vote for Obama (we certainly can’t trust Sen. McCain with this kind of power), but it does make clear that my political contributions need to go to real progressives and to groups like the ACLU and EFF instead. Someone needs to fight against presidential dictatorship.

    You do have a good point about resignation from the Senate. Congress has become a feckless body. They’ve given away their war powers because they don’t want to be held responsible. For anything.

  • Joe Buck

    Oh, and another thing: opposing telecom immunity was not a minority leftist position. Polls showed that most Americans with an opinion opposed immunity. It wasn’t good politics for the Democrats to surrender; just the reverse. Another round of “Democrats cave” headlines disgusts the public and re-inforces the meme that the Democrats are weak and spineless. If they won’t stand up against a 25%-popular president and the threat of attack ads, why would anyone trust them to stand up against a foreign threat?

    Democratic consultants were so scarred by the Gingrich victory of the mid-90s that they still think they are living in a Republican-majority country, where they have to position themselves carefully to save their seats.

  • joey

    Obama explanations for supporting the FISA capitulation make absolutely no sense. For a constitutional lawyer he acts like he either never read or doesn’t understand the bill. He put the same deceitful spin on it as Pelosi.

    The real question is why now…why did FISA need to be changed this drastically now if not to grant Bush cover for his illegal felonious activity.

    Mixed with this is at the same time Obama taped a 1 min. political support ad for one of the worst Bush enabling dems in congress who claimed dems were cut and run on the Iraq issue. Dem Barrow from Georgia was being challenged by a progressive Obama aligned dem in the primary yet threw his support behind this DINO Barrow. He did the same in Illinois in the state primaries choosing a conservative dem over a progressive dem in the primaries. Does Obama really pay attention or is he suffering from bad advice. Did he even read the FISA bill or just listen to the consequences of his actions from some bad advisors. There was really no downside to opposing FISA…none. Now the republicans are claiming that ” Since he finally came around on FISA so soon he will also come around on Iraq and other conservative stands”. It was not only the right thing to do but the politically correct thing to do to oppose this FISA capitulation. Yet he decided to move to the right and support the Bush/Cheney felony cover up. I have yet to hear or see a reasonable explanation for his decision (as Glenn Greenwald refutes his explanations point by point) except that he made a very poor choice thinking only of political expediency. How can he now even say ” a change you can believe in” when he surely knew the results of his decision or are we to believe he’s not that bright.

  • Pepe

    P J Evans, I have yet to see any evidence that the new FISA law is unconstitutional (I guess the ACLU suit will put that to the test), so I don’t see how voting for it violates an oath to protect and serve the constitution. The granting of immunity is certainly part of our legal framework, has been for centuries, and is indeed a *vital* part of our legal system. Unless you can show that the FISA law itself is unconstitutional, then you can’t claim that voting for it violates the oath to protect/serve the constitution.

    Also, you guys need to focus your anger at the real target, which is NOT the phone companies, but is the Bush administration. There are two reasons I have no problem with immunity:
    1. I can’t stand class-action civil suits. They are a scourge on our society and only serve to make the lawyers rich. I “won” class-action suits by being notified after the fact that I was the member of a class that Apple harmed due to iPod issues and Amazon harmed for something I can’t even remember. I didn’t even bother to collect the measely reward since I didn’t favor the suit and didn’t suffer from the alleged problems, but the lawyers themselves made millions.

    2. If, in the wake of 9/11, the government had pressured me to do something, would I really question if it were legal or not? I’d likely assume that it *was* legal (since it’s being authorized by the government) and would go along with it. So I don’t blame the phone companies for going along with the government’s request, and therefore don’t support suing them. (QWest did resist and should be commended for it, but there reward should be gained via the market place, where customers abandon AT&T and the rest and move to QWest, rather than their reward simply being safe from a class-action civil suit that most of the public doesn’t care about to begin with.)

    You guys are acting llike the phone companies are evil incarnate, but they’re not. The phone companies are among the *victims* of the Bush administration. Bush is the problem, not the phone companies. You should focus your ire on the real target rather than getting so worked up about a sideshow civil suit against phone companies.

  • Pepe

    freemansfarm, when I talked of “idiotic self-righteousness”, you certainly do fit the bill.

    I think you and your cohorts are left-wing versions of Bush himself. He sees everything in black and white with zero nuance, and you do the same, just on the opposite end of the ideological spectrum. And you don’t seem to know anything about the legislative process. Legislation is built on give-and-take compromise. Sure, either side might stake out an extreme position, but eventually then compromise is achieved. With no compromise, nothing gets done. And yes, to not understand that is to have the naivete of a child.

    BTW, Are you really going to sit there and say that you’ve never changed your mind about any promise you made? You’re “perfect” (as in, perfectly uncompromising), right? Note that Obama never claimed to be perfect, he’s said over and over that he and his campaign are “imperfect”. So just count this as an example of that admitted imperfection if you wish. Or, as I said, feel free to vote for Nader the race-baiter who has reduced himself to a quadrennial candidate that runs simply as an ego-trip if it makes you feel better. But be sure to examine his record in full; you’ll find he’s just as “flawed” as the rest of us.

    One last thing: I just read a brilliant diary at DailyKos on why you should still support Obama even if you don’t like his FISA vote. Please read it before doing something stupid in November.
    http://dailykos.com/storyonly/2008/7/10/212516/077/495/549720

  • freemansfarm

    To Pepe:

    I guess you are now admitting that Obama did make a pledge and did break that pledge, as you do nothing to back up your orignal claims to the contrary, or to the rebut the sourced, quoted, and linked evidence that I presented in my last post.

    What you think about my knowledge of the “legislative process,” and your idle speculation about my own record in promise keeping, is simply irrelevant, as is your commentary about Ralph Nader. Try to stay on topic.

    As for the “brilliant diary” at Daily Kos, sorry, but that’s a site I long since ceased patronizing; Markos will get no traffic from me.

  • Adam

    This post is characteristically nuanced and interesting, Larry. Still, I disagree with a lot that you say.

    I agree with point (1.) above wholeheartedly if I take it as a more general point, not specifically about FISA. A number of Obama’s positions have lately been misrepresented in the media as “moving to the center”, even though usually they are simply not. For example, Obama has said repeatedly, for months, that he supports faith-based Initiative programs, while demanding stricter accountability, yet this is being presented on the left, as ‘pandering’ to the religiously minded voters, and in the media, as a “move to the Center”. (I wouldn’t deny he’s reaching out to religiously minded voters–but he has always said that it was a mistake for Democrats to not make the effort to do so, and, atheist that I am, I agree).

    However, what I don’t understand is why you’ve reduced FISA to just the immunity issue. Granted, I’m not a lawyer, and you surely know how legal issues work better than I do. But: How can Obama “repeal”, once president, parts of a bill that have already been signed into law, as you claim in point 2 above? (So far as I am aware, only Congress can repeal a law or an amendment to a law–but let me know if that’s not right). Furthermore, as Russ Feingold has argued, the central reason telecom immunity is so important is we don’t know what the Bush Administration was doing, who they were monitoring, and for what reasons. Whatever it was, as Greenwald points out, it was probably pretty bad:

    “Recall that James Comey testified last year that what he and other DOJ officials learned in 2004 about Bush’s spying activities for the several years prior was so extreme, so unconscionable, so patently illegal that they all — including even John Ashcroft — threatened to resign en masse unless it stopped immediately. We still have no idea what those spying activities were.”

    A basic legal discovery process of the telecoms alone would allow access to crucial evidence on this and other issues–that is why this is so important. Moreover, telecom immunity was only one problem among many, many other terrible problems with the new legislation, as Glenn Greenwald has argued extensively. For example, according to the NYT, the new law apparently provides for broad and sweeping warrants, rather than just individual warrants. In addition, American communications to foreign recipients can be monitored without a warrant. I also don’t follow the argument that the “exclusive means” provision of the new bill is somehow new and important, as this was part of the original FISA bill as well, and that JUST IS the law the Bush Administration and the telecoms have broken. To say “getting a regime that requires the executive to obey the law is important.” is beside the point because said regime didn’t follow the law to begin with, and I see no reason to expect that some more ink and paper, which provides for even less oversight than the law that the president already broke, will help.

    Most important, you claim, rightly, that Obama supported an amendment to repeal the telecom immunity provision. But he also voted for cloture to bring debate to a close, when the Senate’s only hope was to stall the bill. I am still a strong Obama supporter, but I think he just made a huge mistake, on the politics and the policy.

  • Kathryn in California

    Pepe,

    1. Have you looked at the lawsuit and the group that started this process, the one filed in San Francisco 30 months ago by a small civil-liberties non-profit*? When the December 2005 NYTimes article came out, what, if anything, would be the legal response you’d want?

    2. Did you know that the previous rules for telecom companies were very specific and strict about what the companies could and could not do? Did you know there was a time when every international telegram was copied over to the government, and Congress made rules for telecom companies to stop that sort of driftnet activity? Why should the telco’s get a pass and the government the blame for a situation where Congress had carefully and directly told the telco’s that they must take responsibility for following the law?

    3. Did you know that while this activity started before 9/11, it also went on for years afterwards? If the government asked you to do something during an emergency, would you never stop–weeks, months, or years later–to review what you did for them? Do emergency requests get a pass simply because they’re made during an emergency, however much time has gone by afterwards?

    4. If the government comes to a company and asked them to do something that might be inappropriate, who should make the final decision–the company’s legal department (or IT department), or a judge?
    i.e.If the executive branch makes the request, then those are the only choices–if the company doesn’t ask a judge, then essentially the IT department or legal department is deciding–concurring–that the request is legal.

    * disclosure–I know people working there. They aren’t rich.

  • http://www.danielberninger.com Daniel Berninger

    Coming to Obama’s defense here sadly undermines your entire Change Congress effort. Blocking telecom immunity was one success among the many many losses suffered during Bush’s tenure. Obama’s reversal made a significant contribution to turning this lone win into yet another loss. The dynamic here starts with accepting the proposition – wire tapping US citizens will make us safer. What evidence do we have this is true? All the super secret NSA type projects operate with no accountability for obtaining results. The embrace of a dubious assumption represents the starting point for many of the losses suffered by the American people during Bush’s eight years – the multi-trillion dollar cost and loss of life regarding the Iraq War chief among these. The Change Congress effort goes nowhere unless you can use teaching moments like Obama’s reversal on FISA to illustrate how things go astray. You decision to serve as apologist for Obama represents the precisely wrong strategy for your new priority. In particular, Change Congress needs engagement of the citizenry to hold elected officials accountable. The FISA issue generated a tremendous amount of engagement, and, yet, you applied your significant skills in analysis toward telling people to disengage.

  • RW

    Talk about signaling not knowing squat about which you speak….a “Bernie Sanders liberal”? That’s your benchmark? Cluestick: Bernie Sanders is a socialist. He’s an Independent because the Democratic party is to right-wing, as he is an open and avowed socialist. That you use HIM as your guideline for what constitutes a ‘liberal’ is really illuminating. In poker, it’s known as a ‘tell’.

    If you don’t believe me, go do some research. It’d do your credibility a world of good, especially when one takes into account that YOU are assuming that others are ignorant.

  • chris

    # Obama is no (in the 1970s sense) “liberal”:
    Ron Paul is also no 1970′s liberals. He opposed this bill. Anybody who cares about the excessive executive power claimed by the Bush administration should have voted against this bill. There was nothing redeeming about it.

    # Obama has not shifted in his opposition to immunity for telcos:
    He voted to approve it. He also said the FISA court works, and now he has taken many actions it would have had to rule on, and shifted it to the discretion of the AG. Opposing amnesty for the telcos required a no vote.

    This is not an easy task. I don’t know, for example, how I personally would have made the call. I certainly think immunity for telcos is wrong. I especially think it wrong to forgive campaign contributing telco companies for violating the law while sending soldiers to jail for violating the law. But I also think the FISA bill (excepting the immunity provision) was progress. So whether that progress was more important than the immunity is, I think, a hard question. And I can well understand those (including some friends) who weigh the two together, and come down as Obama did (voting in favor).
    Please list the progress made in this bill. Try not to laugh as you write it.

    # Obama’s shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise. However important holding telcos responsible is, certainly there is something more important that Congress could have done. E.g., if telco immunity were tied to a bill requiring a 70% reduction in green house gases by 2015, would it make sense to filibuster that bill?
    Good hypo: how ’bout “If amnesty is tied to a bill that practically guarantees the end of any chance to learn of the executives illegal wiretapping, vests the president with unchecked surveillance power over American citizens, and is as disgraceful as the Alien and Sedition Acts, would it make sense to filibuster that bill?” The saddest part of this situation is your hypo: the republicans didn’t even need to play chicken on something important (medicare, SS, environment) to get the useless, spineless dems to gut the 4th – they did it themselves. As Glenn Greenwald has said, Bush couldn’t even get a republican Congress to pass this tragedy, he needed the likes of Reid, Pelosi, Hoyer, and Obama.

    But second, even given it was a stupid promise, in my view, it was political mistake to change — even if it was the right thing to do from the perspective of a U.S. Senator.

    it was a political mistake for the reasons I’ve already explained: it was self-Swiftboating. This shift is fuel for the inevitable “flip-flop” campaign already being launched by the Right. Their need to fuel this campaign is all the more urgent because of the extraordinary “flip-flops” of their own candidate. So anyone with half a wit about this campaign should have recognized that this shift would be kryptonite for the Barack “is different” Obama image. Just exactly the sort of gift an apparently doomed campaign (McCain) needs.

    But again, to say it was a political mistake is not to say it was a mistake of governance. To do right (from the perspective of governance) is often to do wrong (from the perspective of politics). (JFK won a Pulitzer for his book about precisely this point.) So at most, critics like myself can say of this decision that it was bad politics, even if it might well have been good governance. Bad politics because it would be used to suggest Obama is a man of no principle, when Obama is, in my view, a man of principle, and when it is so critical to the campaign to keep that image front and center.

    It was a mistake as to his oath, it was a mistake as to his image of “not just another politician,” it was a a mistake of principle. I supported him over Clinton because I actually though he was a man of principle. It isn’t just that he lied, it’s that he voted the wrong way, and it simply cannot be justified on the merits of the bill. This isn’t good governance, it’s a dual system of justice, and political favors for rich companies that knowingly broke the law, along with a President who broke the law. It’s about vesting powers in the executive that should scare anybody concerned with good governance. Please try to redeem the bill on its merits.

    # Unless, of course, it was good politics: I actually don’t personally believe that this was a decision motivated by politics, because, again, I’ve seen the actual struggle of some who advised on this issue (and I wasn’t one of those few), but we should recognize, of course, that this decision to pick a fight with us liberals may well have been worth more than the campaign would lose by this one clear example of flipping. And here, if you let cynical instincts run wild, there’s no limit to the games that might be imagined. For what better way to demonstrate (accurately, again, for remember #1 above) that Obama is not beholden to the left than by this very visible fight that Obama doesn’t cave in on. When I received the blast from Moveon, demanding that Obama reverse himself (again), it was absolutely clear that he wouldn’t. For how could he reverse himself then, and avoid the tag of being tied to the left? And certainly (more cynicism) Moveon recognized this. What greater gift than a chance to act independently of a movement that (while good and right and true, in my liberal view) is not anymore a spokesman for the swing votes that will decide this election.
    This decision cannot be explained as anything other than cowardly politics. There was no need to give a lame duck, sub-30% president more power (actually, to ratify the power he had already illegally seized), on a core constitutional matter. If Obama wants to show his independence from the left, he could do it with his support of Scalia’s gun decision, which at least gives more liberty to the people, or the death penalty case, or any number of issues. The right not to be spied upon in secret by your government isn’t a liberal value, it’s an American value.

    # But assume you reject #4 completely. Then one more thought: Isn’t it time for Obama to resign from the Senate? Why should he allow the weird framing of issues that will come from this spineless institution to define his campaign? (Notice, McCain didn’t even deign to show up.) Why not simply confess to his constituents that he can’t do his job as United States Senator from Illinois while running for President of the United States. That the clarity of message necessary for the latter isn’t consistent with the obligation of compromise required for the former?
    As an Illinoisan, I would be much happier if I wasn’t at 50% representation vis-a-vis the other states. Thankkfully, our other Senator actually upheld his oath to defend the Constitution.

    # Finally, and 2bc: please, fellow liberals, or leftists, or progressives, get off your high horse(s). More on this with the next post but: it is not “compromising” to recognize that we are part of a democracy. We on the left may be right. We may be the position to which the country eventually gets. But we have not yet earned the status of a majority. And to start this chant of “principled rejection” of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).
    Under this line of thought, wasn’t the CTEA a “compromise”? I seem to remember someone thought it was an unconstitutional extension of copyright for the benefit of a few very wealthy companies, made by a corrupt Congress without a view to protect the public good. No parallels to this instant situation, I’m sure…

  • ggratton

    Dr. Lessig,

    First of all, the fourth amendment is not a liberal issue or policy–it’s an amendment to the Constitution of the United States, the rule of law in this nation. Secondly, Obama publicly announced his decision to vote against and support any filibuster of the the bill before he won the primary. Not only did he filp-flop, he flat-out lied. You may think you are seeing “struggle” amongst your friends in his campaign over what Obama himself has made a “liberal issue.” What you are seeing is guilt at taking the power that has been held out to them. Maybe that’s what leaders do, but I don’t have to condone it by voting for them. Obama has ostracized me, not the other way around, when he made it clear that he did not want or need my vote. He better hope conservatives will vote for him.

  • Jan Vilhuber

    For me, the worst part about this is that Obama is supposed to be a ‘constitutional scholar’. If he knows the constitution really well, he should have heard about the 4th amendment. If he paid attention even remotely, he should have clearly seen that this is against the 4th amendment (if not the letter, IANAL, then at least against the spirit, which is more important to me).

    So which way does he want to spin this? That he was mislead about what was in the bill (admitting he didn’t read it very well)? That he really doesn’t know much about the constitution afterall, and this scholar business is just political bluster?

    Pissed off,
    jan

  • Me_again

    Why Obama will lose this election.

    So if you’re upset with Obama because you see him shifting, you should actually be upset with yourself that you have been so careless in understanding the politics of this candidate.

    Oh everybody knows his politics alright.

    Obama’s behavior so mirrors the image of Bush right now because Obama lies, just like Bush lies to give to corporation whatever they want, just the way Bush always does so I’m not sure what the message is here that you’re trying to make. Bush doesn’t represent conservatives, Bush represents corporate American and anybody else.

    Obama simply shows that he can lie whenever corporations ask him to do it. But Bush has already secured the corporate vote, so Obama and other democrats are not going to get anything from AT&T and Verizon but a mere pittance since the Party of corporate constituency already belongs to the GOP. What Obama did was a suicide act since his election is dependent on netroots contributions, and those netroots believed that Obama was representative people, not corporations.

    You want to call that “lefty hysteria” fine, but those lefty hysteria members won’t pull out their wallets and give to a candidate that frankly, they feel does not represent them because they were stupid enough to misunderstand him. And now you see that Obama is already starting to having money problems. But this is exactly what happens to politicians that show loyality to corporations while dependent on netroot money – they lose. Obama is a fool that even conservatives middle people won’t vote for now.

    Why do I know this, because I’m an independent voter, that lives in a conservative community and like many of the conservative voters around me, I tried calling my Senators to tell them to vote against the FISA bill – and why is that? Because conserivatives like their US Constitution every bit much as any of you stupid lefties if not more. The phones were jamed with like minded conservatives. You see Bush doesn’t represent conservative voters – he represents corporations exclusively and the Republican congress represent Bush – not conservative voters either and it is why the Republican Party vote enbloc and thus why the Republican Party is shrinking and hemorrhaging voters.

    So you see, Obama didn’t go middle – he went corrupt, same as Bush and even Bush wasn’t stupid enough to violate his oath office in full view of conservative voters.

  • Have you read

    Echoing what someone else said – by what measure is this bill “progress”?

    That’s the giant hole in this argument.

    Larry Lessig, please explain precisely how you think this bill is better than what we had before.

  • Pepe

    Kathryn in California,

    I respect the points you’re making. :-)

    My answer to most of them is that I still maintain the Bush is the problem, not the phone comapnies. But I do have a more elaborate answer to your first point.

    The response I would have preferred is to begin impeachment proceedings, not a civil suit against a phone company.

    The other response I would have preferred is, as I said earlier, a marketplace response whereby customers switch their service to Qwest, since Qwest resisted the pressure from the Bush administration. That would be a MUCH more effective response than a civil suit in terms of hurting the other phone companies and sending a message to the phone companies that the public is really upset about what happened. But I must also say, if customers have NOT been switching to Qwest, then that shows that the public doesn’t care much about this issue (at least not enough to switch services). I’d be interested in knowing if Qwest has gained customers over this issue or not.

    As for the civil suit, you say it’s brought forward by a non-profit organization that is not out to make millions for themselves. If so, that allays my fear that it’s just the typical class-action suit brought forward by greedy lawyers that make millions while members of the class they claim to represent get a coupon from the companiy that was sued. But even so, it’s still an example of our overly litigious society, where the first response to any problem is to sue (that’s another reason I hate class-action suits).

    Now, assuming that the goal of the suit is NOT to make the lawyers richl, what exactly is the goal of the suit? If it’s like other class action suits, it’ll be a coupon offered by phone companies to their customers, most of which won’t bother to make use of. Is that really worth getting worked up about?

    It’s my understanding that the *real* reason many want to do the civil suit as a means to gather disclosure which would eventually lead to impeachment. That this is the last chance to really “get” Bush and bring him down, and that’s why this is so important to some on the left. But that sounds like politicizing the legal process and/or the reverse, criminalizing a political dispute. Impeachment is really a political process, not a legal one. If you want to impeach, then do it up front rather than start some legal process only as a means to such impeachment. But I am so over any desire to stick it to Bush through impeachment or whatever, as it’s too late for that. The best way to stick it to him is to elect a Democrat to the White House, even if you don’t agree with everything that Democrat does.

  • http://platosbeard.org/ ravi

    This cannot be the same erudite Lawrence Lessig whom I heard speak at Princeton and with whom I have corresponded about embedded systems and open source. That person would hardly stoop (even in a blog post, which these days seems to equate to abandoning a call for reason) to calling those who differ with him “idiots” as a substitute for presenting arguments on why the new FISA bill with current amendments is the equivalent of “70% reduction in green house gases by 2015″. It is saddening to see the effects of Obamaholism! Casts us Nader and Kucinich supporters in a better light without our having to say a word in defence.

  • e

    I agree with the post. There is, however, another point I feel is important, which I have not seen addressed in any media or blog: those civil lawsuits were going NOWHERE.

    That point is clearly illustrated by Judge Walker’s decision last week in Haramain v. Bush, which Hysteric-in-Chief Glenn Greenwald (who bashes this post in today’s column, btw) has been waving around like a flag. *After* holding that FISA preempts the common law, and thereby rejecting BushCo’s claimed right to ignore the restraints of FISA, Judge Walker went on to explain in elaborate detail how FISA itself embodies “a host of obtacles” that make its civil remedy provision “a mostly theoretical but rarely, if ever, a practical vehicle for seeking a civil remedy for unlawful surveillance.”

    Specifically, the court contrasts the provisions of FISA with those of the federal wiretapping act — which covers wiretapping for criminal investigations — and which does provide a practical means by which persons illegally spied upon can seek effective redress in court. The court, using an established principle of statutory construction, found that Congress’s having chosen NOT to model FISA on the federal wiretapping act — which was enacted 10 years before — means that Congress did NOT intend those same procedures to apply in the case of wiretapping for national security purposes.

    In short, the court found that when Congress enacted FISA in 1978 it specifically designed the law to make it difficult for an unlawfully spied upon person to seek redress. That may sound fucked, and it may BE fucked — but the point I am making is that the ORIGINAL FISA does not “work just fine” from the perspective of protecting our Fourth Amendment rights. We didn’t lose anything on Wednesday that we haven’t lost already.

    Glenn realizes this, of course — and so, tucked into his rants against immunity, are rants against Congress for failing to “fix” the obstacles inherent in the current FISA law.

    But I ask you: in today’s political climate, how could anyone possibly expect that to happen? If our side had managed to defeat telecom immunity, it would have been a victory squeaked through by the narrowest of margins — do you really think that Congress 2008 is going to pass a law making it EASIER to sue the government — or the telecoms — than it was in 1978?

    And so to item 6 of the post.

  • chris

    e:

    I think you misstate Judge Walker’s discussion. His issue is not that redress is difficult under the statute, but notice of being surveilled is, thus making the ability to seek redress difficult. That’s why the civil lawsuits are more important. The government, has managed to hide all of the evidence of its wrongdoing, and except for Al-Haramain, no one can get any info from the administration to establish standing. Because the document involved there is classified, Judge Walker will not allow it to be used to establish standing. But, the plaintiffs have to have standing before discovery, so unless they have evidence, they’re dismissed. The government is not about to hand anything over, so that case is DOA.

    The point of the case is that it is almost impossible to sue the government on FISA, because they can just hide everything from you, since there is no reporting requirement until you already establish you’ve been spied on. it’s a classic catch 22.

    On the other hand, the plaintiffs in Hepting have already gotten past standing, and have sued under a number of other theories, besides FISA. AT&T’s former employee had leaked company documents, which are not classified. So the plaintiffs could and did establish standing. Discovery there was about to commence before this travesty.

    In short, you’re wrong. really really wrong. Obama et al have just killed our best chance to find the truth. The cases were by no means a slam dunk, but civil liability against AT&T looked a lot better than you portray.

  • Donald Duck

    I think you are missing an essential point.

    Rectroactive immunity is against the constitution. It is against the fundamental set of laws that govern this country, a set of laws that our representatives are sworn to uphold. We are not talking about a political deal where he voted for giving subsidies to industry in exchange for getting funds for the elderly. We are not talking about voting to allow drilling off the coast of California in exchange for subsidies for development of more efficient solar panels. Neither of those are against the law. Retroactive immunity is.

    The strong message here is that our representatives think they are above the constitution. That the laws that they pass are somehow better than the constitution. They are not. The constitution can be changed if they are unhappy with it, but not by just passing a law. I thought Obama got that, when he said that he would filibuster. I was wrong.

    Where I end up is that it proved that Obama is just another politician. He might be better at public speaking than a lot of them, but when it comes to following up on the important things, he is just another politician.

  • Idjit

    Your candidate is a LIAR. End of story. Full stop.

    EXACTLY. Lessig, you are apologizing for a liar. You have seriously damaged your credibility. Right wing people have a blind spot for warmongers. Leftists have a blind spot for flakes and liars.

    as for Obama, he is a compulsive liar. In addition to backtracking on his campaign promises (before he is even elected into office! can we believe any of this man’s claims?), he just outright lies in his speeches and hes been caught many times (ie. claiming his uncle liberated the Jews at Auschwitz; Russia, not the US, liberated Auschwitz). Do we really want a president who can’t even keep a 3 month promise?

  • global yokel

    My disappointment in Obama’s FISA vote is not enough to dampen my enthusiasm for his campaign. I’ll continue working to get him elected. But I think he fumbled this one. For most of the electorate, FISA is an arcane and obscure matter that doesn’t concern them– the vast majority are struggling just to pay the mortgage and keep food on the table. Thus, Obama could have stood up for the rule of law in this instance without paying a political price. The Republicans are going to hammer him on national security anyway, and this vote will not insulate him from those attacks. And, since everyone one knew that the Senate was going to approve the FISA bill by a wide margin, Obama’s vote was not determinative of the outcome, further liberating him to do the right thing.

    My concern with Obama’s position on this issue is that he failed to follow through on his pledge to oppose the bill if it contained retroactive immunity. This leaves him vulnerable to criticism from McCain and the media that Obama can’t be trusted to keep his word. And it raises questions among his base supporters, who bought into the notion that Obama was serious about “change” and that things are really “going to be different this time.”

    His vote on FISA also sets up a situation where he now has less wiggle room should he fall short on another promise. Most of us can get over it and allow Obama some slack, because we understand how important it is to keep McCain out of the White House, but if a pattern develops where Obama appears to be shifting for the sake of political expediency, he could undermine his own campaign. This is especially true because his candidacy is not the traditional top-down affair; it is largely rooted in the citizenry, and uses a grassroots fundraising model. I’m a bit surprised that Obama and his very savvy staff didn’t get this one right.

  • idjit

    Obama’s shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise.

    and we become what we hate…

  • FISAd

    Wow! In the first paragraph you write:

    “So if you’re upset with Obama because you see him shifting, you should actually be upset with yourself that you have been so careless in understanding the politics of this candidate.”

    and then 100 words later in big, bold letters you write:

    “Obama’s shift was in his promise, as relayed by a member of his staff, to filibuster any bill with telco immunity: First, and most obviously, that promise was a stupid promise. “

    That’s some pretty impressive mental gymnastics on your part. Usually when people go to the trouble of creating a strawman, they don’t torch him themselves.

    Anyone opposed to telco immunity and who supported Obama in the primary at least in part because of his promise is perfectly right to be upset. I suppose your magic insight into his true character told you during the primary that this was a pledge he didn’t plan on keeping, but the ones he made on whatever pet issue you have aren’t totally BS. What possible basis does anyone now have for judging his comittment to anything he has said? Where does he stand on ending our military presence in Iraq? Health care reform? Global warming? I’d really like to know why you think he is on your side on any of these issues.

  • zeppo

    If there is a lot of hysteria about Obama’s FISA vote, I think it’s rooted in the fear that this vote might be an indicator that he is headed down the same wimpy, triangulatin’, timid, and fearful path that too many of our Congressional Democrats have followed during the Bush years. If we look at the Senate roll call on the final FISA vote, we see Obama aligned with Bush-Cheney-Rove-Gonzales, the Republicans in the Senate, the wretched Joe Liebermann, and the most regressive Democrats in Congress. That’s not good company to be keeping if you’re the Democratic nominee who promised to try to change the political culture in Washington.
    Personally, I’m not getting hysterical– but I do think it’s important to make some noise about this situation and let Obama know that there is a price to be paid for his decision on the FISA issue. I think his choice to support this legislation is a mistake on the merits, and not smart politics either.

  • Idjit

    there is no hysteria, just a realization that Obama is a flat out liar. Lessig, both yourself and Sen. Obama are major disappointments. Even in the areas you claim to champion you have not made a single dent in any issue of any importance whatsoever, you just go on and on with your trendy pontificating without delivering a single thing to anyone who supports you.

  • Pepe

    LOL
    I see that the right-wing trolls have now appeared (Idjit, I’m looking at you), which means that this thread has now outlived its usefulness.

  • Eyal

    Meanwhile, I’m sending money I would have given Senator Obama’s campaign to EFF and the ACLU. Obama will get my vote, but he will have to earn my trust and respect again before I send him more money. And, he doesn’t just have to get the next big votes right, he has to lead the country on crucial moral issues. He should stay in the Senate and fight for honor and decency in the government, something we don’t have any of right now.

  • idjit

    I see that the right-wing trolls have now appeared (Idjit, I’m looking at you), which means that this thread has now outlived its usefulness.

    sure Pepe, anyone who violates Democrat doctrine must be a ‘right-wing troll’. Lying is apparently a permissible offense in the Obama campaign. He’s selling us out before he even got elected!

    Lessig, you misled us. You are worthless.

  • e

    chris:

    You state: “On the other hand, the plaintiffs in Hepting have already gotten past standing, and have sued under a number of other theories, besides FISA. AT&T’s former employee had leaked company documents, which are not classified. So the plaintiffs could and did establish standing. Discovery there was about to commence before this travesty”.

    Do you have a link for that assertion? Because I have searched Hepting on PACER and the EFF and ACLU websites and find no verification for it.

  • Pepe

    sure Pepe, anyone who violates Democrat doctrine must be a ‘right-wing troll’.

    No, just you, Idjit. Lots of the posts above have heated rhetoric criticizing Obama and/or Lessig (and some defending them), but the only posts that are really trollish are yours because your posts are nothing but flamebait and add zero to the discussion. And I’ve read enough of the progressive blogosphere over the last few years to recognize a right-wing interloper when I see one. They typically take the guise of a progressive purist but their posts are incredibly vacuous, containing nothing but bomb throws at Democrats that are deemed less “pure”, so as to stir dissent among the ranks. Your posts have all the signs of such right-wing trolling. Next time, try adding at least a little bit of substance to your posts so it won’t be so easy to call you out for what you are.

  • Disappointed

    Prof. Lessing, beg to differ with you on this one. Many of the commenters have pointed out flaws and inconsistencies in your argument and I will not repeat those again. I am compelled to say that it is extremely disappointing to hear you say that this law (barring the telecomm immunity part) is progress. Here is just one of the many reasons why that is out flat out not true : http://www.washingtonmonthly.com/archives/individual/2008_07/014066.php (h/t Greenwald)

    If enhancing our security was the real motive then Congress could have achieved that with a more finely tuned law that did not provide blanket immunity to telecoms and effectively eviscerated 4th amendment protections. That was never the case and the entrenched political class with an able assist from the conniving media accomplished what it set out to do by spreading lies, falsehoods and engaging in rabid scare-mongering. Just as Obama has the right to do what he perceives is the best course of action for him so do people who care about civil-liberties. And if that means taking Obama to task then so be it. Instead of calling this movement “passionate” you chose to use a pejorative label like “hysteria”. IMHO, you are letting your sympathy for Obama cloud your objectivity. Obama has enough surrogates and spin-meisters do his bidding, please do not become just another Obama fan boy.

    Politicians of all stripes should be judged by their actions and not their words. It is of little comfort to find out that the Obama campaign struggled with this decision. How can we be sure of that? It could easily argued that it is spin to lessen the impact of the flip-flop. What is not contestable is how he voted and there he reneged on an important promise he made to his supporters.

    Just to be clear, I am not going to abandon Obama for this transgression, but will definitely be not giving him my hard-earned dollars. Instead they will go to ACLU and/or EFF.

    I never bought into the Obama mania and have always been circumspect about his progressive credentials, so his FISA-reversal did not surprise me as much. But your post most definitely did and is a timely reminder that no one is perfect, not even you :-)

  • Eric Jaffa

    RE: Obama “has promised to repeal the immunity as president.”

    Got a link?

  • chris

    e:

    look at eff’s site,

    Motion to Dismiss Order pg 45-50
    Order granting in part and denying in part the motion to stay

  • http://www.washingtonmonthly.com/archives/individual/2008_07/014066.php Jacob Frautschi
  • Chad Robinson

    Damn, the dems seem to finally be getting a functional talking-points disseminating apparatus, because I have seen this ridiculous argument in many places.

    Point number 2 is where the bigtime misdirection begins. Let’s clear that up, shall we? In January, an Obama spokesman promised to filibuster any FISA bill that contained immunity. This FISA bill contained immunity, Obama parroted Pelosi’s weak and provably incorrect “this is a better bill” canard when he then declined to do as he had promised. That’s really all there is to it. Alot of civil libertarians supported him in a hotly contested primary because he promised that he would be honest and that he would do things like filibister this bill. Now he has knocked down both his honesty promise AND his civil liberties credibility. People can argue that he’s liberal (I have no idea if this is accurate) or that he’s still probably better than McCain (this is most probably true) all they want, but you cannot unshit this particular bed. He either lied to his supporters for political gain or he turned out to be a coward in the face of a tough floor fight. Neither of these is an attractive trait.

    So, in the wake of this failure on his part (and it was a failure on his part) many people, myself included have decided we no longer trust him enough to support his campaign. At least not financially (I’ll vote for him as long as he looks like a better choice than McCain, but my political contributin’ money, all $2k of it, is now going to the ACLU and certain targeted house races).

  • Idjit

    Pepe, your accusation is absurd.

    the proper reaction to Obama’s blatant disregard for our constitution and the people who supported him is none other than RAW INDIGNATION. Rationalize it all you want. He betrayed every person who got him to where he is.

    Lessig, on the other hand is guilty of the worst kind of political chauvinism. That same sort of chauvinism that he has pledged to destroy. What a hypocrite.

  • Sam

    Hi,
    Just say about the hysteria that has broken out among we on the left in response to Obama’s voting for the FISA compromise was totally predictable.You lost me when you said that the new FISA bill was progress.

    Sam
    Ad Post

  • Sam

    You lost me when you said that the new FISA bill was progress.Some more cynical types might say, so predictable as to be planned. National campaigns are dominated by people who believe a leftist can’t be elected to national office.

    Sam
    Ad Post

  • Pepe

    Orin Kerr has a totally different take on the new FISA bill than its detractors do, which makes me question just how many of you have actually read the legislation. That is, aside from the immunity, it provides everything the progressives would want (which is why it’s a “compromise”; you get a lot of what you want, but not everything, which is the way most legislation works).

    http://volokh.com/posts/1215699055.shtml

    “As I see it, the new law takes the basic approach of the Protect America Act of 2007 and adds privacy protections and bolsters the scope of judicial review. On the whole, the new law strikes me as pretty good legislation: It nicely responds to the widely expressed fears last year about how the Protect America Act could be implemented. and it ensures that the FISA Court will play a major role in reviewing surveillance of individuals located outside the U.S. Indeed, it seems to me that the new rules create pretty much the regime that critics of the Protect America Act wanted back in 2007.”

    I was watching MSNBC’s Dan Abrams’ “The Verdict” show the other day, where congressman Adam Smith of WA had much the same take (he is one of the Dems that opposed the previous FISA proposals but supported this one (i.e. a traitor/sell-out according to some here)). His take was that (and this is a near quote), in the previous FISA proposals the immunity clause was so important that it trumped the rest of the bill, but in this ultimate proposal, the non-immunity portion is so strong that it trumps the immunity clause. Rather than calling such Democrats trators/sell-outs/tyrants/capitulators, or whatever, maybe those that are upset should consider the possibility that they have a valid viewpoint. Maybe respectfully disagreeing is better than questioning people’s integrity.

  • Idjit

    Pepe, if there is anyone here who appears to be working on behalf of a political organization, it would be you.

  • Dierk

    Professor Leesig, I missed one crucial thing:

    On what grounds is Barack Obama better and will be more constitutional than, say, Georg W. Bush or John McCain?

    Doesn’t the traditional ‘evaluate from their deeds not their words’ not hold anymore? That is, when Obama’s campaign tells us how he will be a morally good president it is true, but when the McCain steam train says so it is just spewing lies?

    Sorry, this is not just about being disappointed because one went in with expectations too high – nobody really believed Obama to be a saint, did they? This is about consistently doing the opposite of what he promised as long as he needed the grass roots Internet LEFTISTs [actual liberals, look up the word in a text book on political movements through the ages]. Now he decides to do what everyone expected from Mrs Clinton, catering to the Beltway.

    There may be differences on paper between the current possible Rep candidate and the possible current Dem candidate. But that’s just paper. When it comes to the action, Mr Obama does not look good after the past four weeks.

  • m

    The Democrats have been unwilling to stop the depredations of the current administration, other than to support the passage of new laws saying please obey the old laws. That is like saying we will pass a new law about robbing banks, and all those who have robbed banks in the past must obey the new laws and stop their naughty behavior, or we will have to pass an even newer law about bankrobbing.

    With the complicity of the Democrats, this administration has passed an unending series of bad, incompetent, unconstitutional, undemocratic, corrupt and just plain unworkable law. I have listened to the Democrats tell me that they are “keeping their powder dry” for 7 1/2 years, and that next time they will surely stop the administration from getting these outrages passed. I am still waiting for the Democrats to locate their notochord.

    The Corporate State, composed of megacorporations and the Executive, has committed an enormous number of felonies, and the individuals who have been damaged have nor recourse or remedies for those harms. This is not something that happened for six months after 911 when the administration could have said that it had reasonable concerns and took emergency action.

    No, this was an administration that started the process before 911, two weeks after they took office. That means that the criminals planned it even before they took office. Not only was there no emergency justification at its inception. But we even have proof that the entire fiasco had been in process for almost 8 months by 911, and it was an abject failure in protecting us. Criminal, unconstitutional and incompetent. Worse than criminal, it was a mistake. This administration is guilty of any number of crimes from simple corruption, to massive Constitutional outrages, to the violation of both US and international law in actionable Crimes Against the Peace, and Crimes Against Humanity.

    The FISA law allowed wiretapping to start without a warrant, as long as application was made within 72 hours. The Congress offered to simplify that requirement, but the Executive said it was not necessary. The FISA Court almost never rejected a warrant application. So just what was the Executive doing that couldn’t be passed by the FISA Court, and just who were they wiretapping?

  • e

    chris:

    I consulted one of the attorneys for plaintiff on the Hepting case and you’re mistaken. The case is on hold before the Ninth Circuit Court of Appeals.

  • http://www.ifyouwas.com baoky

    Even in the areas you claim to champion you have not made a single dent in any issue of any importance whatsoever, go on and on with your trendy pontificating without delivering a single thing to anyone who supports you.

  • evil twin

    Actually, the thing I found most interesting and telling in all this was that Barack Obama considered the enhanced wiretapping powers in this bill non-negotiably essential and urgent.

    As essential and urgent, one might say, as reducing greenhouse gas emissions. *So* essential and urgent that he was willing to break his previous promise to treat an immunity clause as a non-negotiable deal-breaker. I guess I should thank Professor Lessig for not poking any holes in my hysterical interpretation of Obama’s priorities…

  • Duncan Kinder

    “Please, fellow liberals, or leftists, or progressives, get off your high horse(s)….To start this chant of ‘principled rejection’ of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).”

    If the FISA vote were but one instance, the Lessig would have a point.

    However the Democrats have a track record of “caving” time after time after time since at least 2000. FISA is but the latest episode.

    Accordingly, the heavy burden in on Obama to prove that this is not another such “caving” and that his presidency will not feature more such “compromises” and “bipartisanship.” ( During each of which episodes the Lessig’s of this world will be calling for people to “look at the big picture” and so forth. )

    No. The time has come for the Lessigs of this world to put up or shut up. If the Democrats – including Obama – actually are these marvelous fellows, then they must produce results and they must do so now.

    So Prof. Lessig, let me put it to you. Just how much of your personal and professional reputation and standing are you willing to put on the line to guarantee – I repeat, guarantee – that the great age of Democratic capitulation is now ove?

  • razor

    The defense of Obama reminds me of how you have also argued that Scalia is a principled jurist. Yeah yeah. Whatever you say.

  • Idjit

    So Prof. Lessig, let me put it to you. Just how much of your personal and professional reputation and standing are you willing to put on the line to guarantee – I repeat, guarantee – that the great age of Democratic capitulation is now ove?

    answer: none. he’d rather rely on his image than make any discrete promises to anyone. When are people going to realize that people like Lessig and Obama aren’t going to give you a single thing. They are just going to pretend they represent you, and exploit the power that leadership brings. They totally worthless. There have been countless important issues concerning copyright, RIAA, Open Source that deal with real money, real corporations, and real rights of REAL AMERICANS. Lessig has not made a f-ing peep about them, but he sits in the seat of ‘world expert on copyright law’. What a joke you are Lessig. If anything he has served to divert peoples attention away from the real issues towards his fun little programs like ‘Creative Commons’. Actually the things that he is credited with he didn’t even formulate himself, he mainly just ripped off the open source community and the groups of activists who don’t have a fancy job at Stanford.

    With Obama were just going to get 4 years to stupid promises and no solutions. He can’t even run his campaign without being caught in lies.

  • http://www.thelowbar.com Jake

    To Pepe:

    “…if customers have NOT been switching to Qwest, then that shows that the public doesn’t care much about this issue (at least not enough to switch services).”

    Some of us can’t afford to pay the fees for breaking our contracts with our current telcos. Believe me, if I could, I’d switch in a second.

    To your point about our litigious nation, I agree that baseless class action lawsuits and other frivolous lawsuits suck, to say that all class action and civil lawsuits “are a scourge on our society and only serve to make lawyers rich” betrays your myopic understanding of what is at stake with this FISA bill. I have a problem with baseless suits also, but for different reasons. Baseless and frivolous lawsuits undermine the important and valuable need that moral and well-deserved lawsuits serve.

    If it weren’t for class action lawsuits, you’d still be huffing asbestos and ingesting poisonous levels of lead and mercury and god knows what. Class action and civil lawsuits are often the only recourse for people against abuses by corporations, because historically, our government has a weak track record for siding with the people against big businesses. Ask anyone who has had to watch a loved one suffer from lung disease caused by inhaling asbestos.

    As for wanting to pursue action against telcos, it’s not just about holding Bush accountable, it is about holding the telcos accountable too, and upholding the Fourth Amendment.

    There’s nothing “idiotic” or “self-righteous” about fighting for the law, and fighting for the Constitution. To be clear, I am one of those people who swore that oath to support and defend the Constitution, and it is an oath I take very seriously. And I take it personally when pompous and arrogant people are so dismissive of it, for these are the very people that have been complicit in allowing America to become a nation of men, not laws, a nation that tortures, and a nation that celebrates and rewards liars.

  • http://www.thelowbar.com Jake

    Dr. Lessig,

    I’m a big fan of yours, but I am deeply offended that you call “hysterical” people’s outrage over Obama breaking a promise that he made in order to secure our support and loyalty. But this outrage is not just targeted at Obama, but at the FISA bill, the Democratic party, and all of those who were responsible for illegal surveillance. Obama’s reversal on this issue just makes it all the more painful, and for me, a lot more personal considering how much money and time I have volunteered to his campaign.

    For you to be so dismissive of people like me is almost as much an affront as was Obama’s FISA reversal.

  • Michael Brown

    Dr. Lessig, I’m extremely disappointed in this very cowardly, almost entirely fact-free, and deeply reactionaryattack on a “hysterical” left that essentially doesn’t exist except in the minds of Fox News bloviators and (now, apparently) you. I’m still waiting for you to answer Matt Stoller’s comment above , which calls you on every one of the lies and unwarranted assumptions your post incorporates.

  • Kathy

    I am not hysterical. I am livid. I am so deeply angry at what this administration has done, breaking the law at every turn and getting away with it because we are letting them. It’s not about political or governance mistakes, it’s about the rule of law. How could you of all people miss that?

  • DiBaskin

    I am an Obama supporter. I too am very upset and disappointed about his FISA vote. I don’t want to lose anymore of my constitutional rights because of fear. Since 9/11 we are already being searched at the Airport without probable cause. Even with 4th Amendment protection, some police Officers use shady tactics to search and seize property. With out full enforcement of this Amendment I am fearful of what they may do. I will still vote for Obama over McCain but some of the trill is gone for me.

  • and yes,

    I am not hysterical. I am livid.

    and the arrogance of Obama cannot be understated. The fact that he can blatantly contradict his own precepts and does so without so much as an explanation can only point to a disrespect for his supporters.

    I can only assume that all his promises are empty.

  • give_me( liberty || death )

    Lessig, its not hysteria, its a healthy reaction to an attack on our freedoms and a betrayal by someone who claimed to support our concerns. You are a pompous ass.

  • tanstaafl

    A few points for anyone that feels targetted by and offended by Lessig’s point #6.

    1) Every single Republican in the Senate vote FOR the FISA bill, AGAINST the ammendments to remove telcom immunity, except for John McCain (and maybe others?) that didn’t bother to vote on it at all. Most of them supported the President’s version of this bill which was significantly worse.

    2) While the Democrats are technically the majority party, effectively they are not, particularly on so-called national security issues. Lieberman is an Independent who caucused with the Democrats when selecting Chairman, etc for the current congress and who supports them on most economic and many social issues, but has been siding with the President on Iraq and national security issues both in his votes and his public statements for several years. There are several other Democrats who while not pubicly attacking the party the way Lieberman does, have always voted with the Republicans on certain issues more often than any Republican will cross over to vote with the Democrats on any party-line issue.

    3) Because of 1) and 2) there was virtually no chance that Obama could change the outcome of this vote. If he had taken a particularly forceful stand and persuaded the party leadership to oppose this bill, then maybe they could have gained enough votes to block cloture but this was very unlikely once the bill made it out of committee. Feel free to rant and rave about Rockefeller and any other Democrats on the Intelligence Committe that helped craft this compromise.

    4) Just as George Bush has been horrendously worse on every possible issue that the Green Party cares about than Al Gore would have been, John McCains record shows that there is no possibility that he will be better than or even as good as Barrack Obama on consitutional issues. He has already reversed himself on torture policies, gone from statements supporting habeus corpus to calling the recent Supreme Court decision on this issue “one of the worst decisions in the history of this country.”. As I mentioned earlier, he didn’t even bother to vote on the FISA bill, and there is nothing in any of his recent statements or voting history to support the idea that he would be any better than Bush, much less Obama, on constitutional issues from FISA to the “unitary executive”.

    5) As leaving the Republicans in control until things get so bad it sparks a backlash, how many years or decades are you prepared to wait and how bad are you willing to see things get in the meantime?

    6) Telcomm immunity may be worth opposing on several grounds, but using the discovery process to reveal executive branch malfeasance is not once of them. Civil lawsuits are subject to dismissal by the courts on a number of grounds and are long, drawn out affairs at the best of times. Public disclosure as a result of such suits is not going to happen for months or even years, if ever. Meanwhile, President Obama would be in a much better position to investigate all of the activities of the Bush administration than either the courts or Congress.

    7) Therefore the best course of action to take if you really care about accountability and rule-of-law is to do whatever is necessary to elect Barrack Obama as President and to elects as many Democrats as possible to Congress so that the Blue Dog Democrats in the House and their counterparts in the Senate have less influence. Note that among other things, this group bore primary responsibility for siding with the Republicans to help pass the bankruptcy reform bill.

    Then keep the pressure up on both Obama and the rest of the Democratic leadership to revisit FISA and all the other issues where you feel the party has betrayed you. If Obama becomes President and the Democratic party has 55 or more Senate seats and a 100 seat edge in the house and it STILL caves to the Republicans on multiple issues, then feel free to give up on them.

    8) In the meantime, the over-the-top “Obama can’t be trusted on anything” rants that are appearing far too frequently on liberal blogs ARE hysterical and counterproductive and many of them are clearly the work of right-wing trolls. Please note: most of the posts criticizing Obama over FISA are not excessive and most of the ones that are are still not the work of trolls, take a close look at your own words before deciding whether you need to be offended by this post. The one example I will point out is Me_Again who has been derailing virtually ever thread on several blogs with multiple extended rants against Obama and not contibuting any new information or ideas to the discussion in any of them.

  • blognround

    Larry,
    I have to agree with Matt, at the very beginning.
    please read Glenn Greenwald’s discussion on Torture and Rule of Law.
    http://www.salon.com/opinion/greenwald/2008/07/12/torture/index.html

    The essence is that America supports 2 tiers of justice,
    one for the political elite and the executive where Rule of Law is being
    dissolved and replaced by Rule of the executive and consistent Rule of Law,
    for the rest of America, the non politically connected, the common man.

    FISA is a symptom of a greater disturbing trend, that is largely ignored.
    We’ve become a nation of political criminals. The nuanced argument shrinks in
    relevance when considered from this view.

    the fact that Obama chose political expediency over the consitution and rule
    of law, suggests Obama isn’t ‘a different politican’ or ‘jack kennedy’ or a brilliant, constitutional
    scholar… just one of the ‘political elite’ authorizing the lawlessness.

    for many, this point his complicity, undermines his very message.

  • BornFreeMen

    Well said tanstaafl,

    We must at all costs get a Democratic President in the White House that cares more about the general welfare of Americans that one that cares about Imperial War-mongering and Corporate Greed.

    Seven years of this kind of Faciast rule has weakened the checks and balances of our three branches of government, Americans civil liberties, wages, our economy and the honor of our Military.

    Lets face facts, America has been hijacked by right wing lunatic fear mongering greedy bastards. The more we find out about the 9/11 attacks, the lies that led us into two wars, and the outcome of oil company take over of oil production in Iraq, the more Americans wake up.

    Is their any doubt that the Right Wing Corporate Military Complex has a stranglehold on congress. I wonder how much data was collected on our elected officials with illegal warrant less wire tapping and surveillance.

    The Democrats vote in congress like they are being blackmailed as well as bribed. This Administration would definitely spy on anyone and use the data to destroy or manipulate. Their spy machines are hard at work all over the country.Local spying is a must in each community, Terrorists could be anywhere.
    Community watch groups spy on their own neighbors.Nation wide.Local Verizon outfits do the tapping, and street surveillance.
    They will do anything and say anything to keep the Imperial War Machine law of the land.

    One just has to read a couple of books like ” SPIES FOR HIRE ” by Tim Shorrock to realize that we are being over run by law enforcement growth based on using massive data collection.
    400 billion dollars over the last 5 years have been spent on private contracts with private company’s like CACI, L3 Communications.They build and maintain private Spy Networks.

    The more data they collect , the more people you need to check on suspicious triggers in the data.
    Triggers that are designed to create growth in law enforcement agencies.

    The key to all of this is Warrant less wire taps, it all starts with the Telecom company’s.
    Millions of taps a day, huge super computer networks to collect and search for triggers.
    If you had to wait for court signed warrants, these huge computer spy systems would sit idle.Oooooops there goes the billion dollar contracts.

    If you read Tims book, go to the web sites of these private contractors that are spying on Americans, you will quickly find out that they have thousands of job positions available. IT, translators, security clearance positions, etc,etc.

    Is it me, or do we now have a revolving door from the military to private spy contractors for high clearance individuals.
    What about a really bad economy, where young men can not find good paying jobs, but hey we are at war, and guess where these young men are going.Though the war is unpopular, recruiting is back up.

    Knock , knock , Iran you are a bad country.

    We have been played, and if you look at the last 20 years, including the Neocon political war planning groups lead by Dick Cheney in the Ninety’s, their plans were almost perfect.

    The sad truth is this, history shows us that the Imperial Greed machine has always paid very well, and attracts the most brilliant people who can out think and out plan those of us not driven by the corruption of money.

    So, until the Democrats start getting paid off well by non oil,non military corporations, even a Democratic president will a have very difficult time of unseating the power of the Bankers and Wall Street supporting this kind of world greed.

    Don’t forget the fuel that keeps America frozen ,,, fear, oil shortage, bad economy, Media Propaganda.

    They have us by the short hairs, and we are in it so deep right now, that any major deviation from the master plan will definitely ruin this country.

    They are so smart, go ahead attack Iran ,, 250/berral of oil. Good Buy America ,,,, Hello Police State.

    You know , and I know, once Iran falls , the rest of that regions fall in to Imperial rule. Will that makes us more safe or less, only time will tell.

    The question is this, how long will it take for Iran to fall, how many lives , or does world war three start.

    Whether Americans agree or disagree is a mute point, we have no say, or haven’t you noticed.

    They have everything they need to control the angry mob, from the Spy machine to the in increase in ground law enforcement,non lethal crowd control weapons ,to private army’s.

    God Help us, I don’t think the Next President can, assuming we even have elections.

    BornFreeMen

  • HeavyJ

    This post is entirely inane ov every level.

    Example: “He has promised to repeal the immunity as president.” (Yes, presidents can now repeal laws, hadn’t you heard?)

    Example: Obama can lead/campaign better if only he resigned from the Senate.

    Where did Kevin at Washington Monthly you up?

  • Anne

    It doesn’t matter whether he was playing politics or not.

    The fact of the matter is: he voted to compromise the integrity of the US Constitution.

    Do you really think that’s a wise and good decision?

    I trusted him. He is already betraying that trust and he hasn’t even been elected President yet. What’s he going to do when he gets into office?

    I’m not naive, I realize he is a politician in our broken 2-party system. I expected him to make mistakes, to get things wrong. But not this. Not a decision about the 4th Amendment.

    I’m deeply disappointed.

  • lokywoky

    I am deeply disappointed. I am disappointed in Obama. I am also very disappointed in you.

    The new FISA Amendment is NOT a good move forward. In fact, it removed oversight of wiretapping from the judiciary and placed it in the hands of the IG’s – a bunch of appointed bookkeepers, whose reports AFTER THE FACT will do nothing to protect us, the American CItizens, or to protect the rule of law.

    If you really want to do your job as you define it, you might be well advised to actually consult some Constitutional Lawyers (other than Barack Obama) and see what they think. Talk to the ACLU, talk to EFF, talk to Human Rights Watch, Amnesty International, Jonathan Turley, Glenn Greenwald, John Dean, Chris Dodd, Sen Feingold, and many many others. You should check out the membership of “Strange Bedfellows” – organizations and individuals from all over the political spectrum who have only one thing in common – OPPOSITION TO THIS HORRENDOUS BILL!

    We do NOT need to ‘get off our high horse’. YOU need to actually find out what the facts are about how this law shreds the Constitutional protections enshrined in the Fourth Amendment, and stop acting like one of the right-wing ninnies. I

    I was very excited about your Change Congress organization when it started – but the last couple of communications from you have left me wondering just what I signed up for. You have spread misinformation, and now you are ignoring the gorilla in the room that this Administration has succeeded in foisting off a retro-active approval of all of its illegal activities, a legal cover-up of all its illegal activities, and blanket immunity not only for the telcoms, but officials at all levels of government. This bill not only whitewashes the past – it provides a ‘legal’ framework for more and larger abuses going forward.

    I thought better of you. Now, not so much.

  • http://www.socialsecuritybullshit.com Steve Baba

    “This cannot be the same erudite Lawrence Lessig whom I heard speak at Princeton and with whom I have corresponded about embedded systems and open source. That person would hardly stoop (even in a blog post, which these days seems to equate to abandoning a call for reason) to calling those who differ with him “idiots” “

    It’s a fine distinction, but I think Lessig call it idiotic behavior as in

    “It’s idiotic to tell your enemy your military plans even if you do plan to withdraw.

    As opposed to “Obama is an idiot.” (not true even if you dislike Obama)

    If it makes you happy, Lessig in effect called Obama an idiot for “self-swiftboating himself” (Lessig disagresses with Obama’s shift to the center strategy).

    But blog standards have fell to much that words don’t mean the same thing. For example a slut is any non-virgin, and a Facist is anyone who has different law-and order beliefs. Also obvious on this page a “liar” is anyone who has made a wrong statement or changed his mind. And hysterical means overreaction.

  • Roger

    We the people are having our oversight of the executive branch removed by congressional decree through the FISA legislation. Of course Obama supports this new FISA bill; once president, he can legislate immunity for himself, his cabinet, and his favorite industries.

    The FISA bill, to me, was a test of character. Maybe Obama has strong convictions, but I don’t see high moral or ethical standards in this vote. This vote does not follow with Obamas rhetoric concerning a “new brand of politics” or “a different direction”. This is Bush politics as practiced for the last too many years. Our current president has strong convictions, but no morals or ethics, and Obama is indicating that he will bring more of the same.

    The public, in my opinion, has a right to challenge through legal means any governmental decisions or actions. Taking this right away limits the power that the public has over the government, and sets a precedent for further reduction in governmental oversight. This puts more power in the hands of the fewer, exactly what our founding fathers were trying to avoid. It’s OK to compromise on some public works project, or perhaps defense spending. It is not OK to toy with the basic principles upon which we exist as a society and a culture. A politician would vote for FISA, but a leader of strong morals, ethics, and principles would take a stand against it. I know what Obama is now, and am deeply dissapointed.

    One last point. I believe that the president influences the direction in which the country moves through his actions and rhetoric. For instance, under Bush the current, we have seen a continued erosion of ethics on Wall Street and in local public office. I believe that Bush’s character has bled over into other parts of the U.S. and has contributed to our decline as a nation. Bush, instead of being the best that this country could produce, is rather an example of what we could or already have become. He has indicated that the lowest road is by far the best choice, and this is being emulated by other public and private leadership. We need a star to chart our collective course by, and the course being offered by Obama is using the Bush compass.

    I guess I’ll be sitting on the sidelines in November. It was exciting while it lasted, but once again politics gets in the way of progress.

  • http://nyletterpress.wordpress.com/ Chris

    This was quite the rationalization trying to justify the actions of someone who just voted to destroy the 4th Amendment. Keep dreaming. Obama won’t get rid of the immunity aspect of this bill. He’ll pick up right where Bush left off.

  • http://www.perilocity.net/ jsq

    “An executive can always ignore the law, Larry. But Congress can make it clearer that he is ignoring the law. “

    Like Congress is currently doing by letting Karl Rove (and Harriet Miers and …) refuse a subpoena?

    Congress could haul them in using inherent contempt or impeach their current or former bosses. Instead it chooses to pass a law immunizing not just the telcos, but effectively the government perpetrators by burying the evidence that civil cases against the telcos would bring to light.

    Obama was wrong to vote for this bill, especially after he said he would support a filibuster against it. Stop making excuses for him. Help convince him to admit his error and find a way to fix it.

  • http://newsgrist.net joy g

    we have not yet earned the status of a majority. And to start this chant of “principled rejection” of Obama because he is not as pure as we is, in a word, idiotic (read: Naderesque).

    Thank you for this post Larry, you are right on the button. Will reblog it. If only the teeth nashers on the ‘left’ would get off their high horses, as they themselves put it. If not, we will find ourselves once again up shit creek.

    j

  • http://video.google.com/videoplay?docid=2656977713611723823&hl=en and then

    a good video: http://video.google.com/videoplay?docid=2656977713611723823&hl=en

    Some of the posts here are obviously from Obama campaign agents as they read like “1001 Reasons To Still Vote For Barak Obama”. I will now vote 3rd party as I will not give my vote to a man who insults me this way.

  • joy g

    (Upon re-reading the irate comments to this post): when you and yours finally wake up (cf: when McCain is President because you so thoroughly missed the point), come back and re-read this post and weep.

  • freemansfarm

    Steve Baba:

    “But blog standards have fell to much that words don’t mean the same thing. For example . . . on this page..a ‘liar’ is anyone who has made a wrong statement or changed his mind.”

    Is that what you honestly think happened? Do you really think it is more accurate to describe Obama’s behavior in this affair as “making a wrong statement” or “changing his mind,” than lying? OK, yeah, there is a lot of resorting to hypegole on blogs, but isn’t there just as much resorting to euphemism? Especially when the blogger’s preferred ox is being gored? Sometimes, people really do lie. Why is it illegiitmate to call them on it?

  • kris

    Prof Lessig,
    There are three problems with this bill and Sen.Obama’s actions as I understand them:

    1. It effectively weakens the fourth amendment and increases the power of the executive without
    oversight of any sort. In this regard, I find it curious that you believe that the amendments to
    FISA were “good”, unless you are using the same standard as that of Prof Kerr.

    2. It legitimizes violations of the law by both the executive and by powerful (semi) private organizations
    after the fact. In addition to being an insult to citizens, this is a very troubling and dangerous precedent.

    3. This bill was passed by a *democratic* congress when previous attempts to pass it under republican
    majorities failed (this is from Glenn Greenwald). Sen. Obama is the leader of the democratic party
    and he not only voted in favor of this bill, but essentially lied. Your apologia notwithstanding, he
    is on record as promising to support a filibuster of *any* FISA bill with immunity provisions. Both your
    apologia and those by his people elsewhere about this are nice bits of sophistry.
    Obama has gone on record stating clearly that he thought the previous FISA courts were adequate
    and this new bill compromises civil liberties. He has completely altered his stance while voting for this
    bill. You are also too good a lawyer to know that this bill has problems well beyond the issue of
    telecom immunity.

    Given the circumstances, and the nature of legislation that he has supported; there is now reason to believe
    that he places political expediency over his obligations to the constitution, and his promises to his constituents.
    This is the more charitable view of his actions. A less charitable view would be that he actually believes that
    what the current administration has done is a reasonable and legitimate action-
    if true he does not deserve to be trusted with the power that comes with the presidency.

    The common argument that I have seen on blogs and elsewhere is essentially that there is no
    real alternative to Sen. Obama as president, and hence liberals and democrats everywhere should
    simply shut up. In essence, this is also your argument. However, doing so would only confirm in
    him the belief that he can lie and betray the principles he claims to stand for without any real political
    cost. There is at most a difference of degree in such an attitude between any future president and
    the current one.

    What is apparent from this episode is that when it comes to civil liberties, there is little difference
    between significant and powerful sections of the democratic party and the republican party of
    President Bush. Unfortunately, it appears that Sen. Obama subscribes at least in part to some
    of these beliefs. This is terribly disappointing, and I must say it is also disappointing to read this
    particular blog post.

  • http://www.socialsecuritybullshit.com Steve Baba

    To tell a lie, one has to know/think it’s false at the time it’s told.

    Good luck trying to prove that George Bush did not know/think there were weapons of mass destruction in Iraq or that Obama knew he would do the opposite of what he said in the future.

    Flip-flopper maybe. Liar is harder to prove.

  • freemansfarm

    To Steve Baba:

    Funny that you would equate Obama/FISA with Bush/WMD. Do you think that makes Obama looks good?

    And, even if I can’t prove that Obama intended to break his word when he gave it, isn’t it still a fact that he did broke his word? Is that what this is all about? The difference between “lying” when Obama gave his word or Obama “just” knowingly and deliberately breaking his word, without necessarily having been dishonest at the start, when he gave it.

    To me changing one’s position is a flip flop, while breaking one’s word is dishonesty. I think there’s a difference.

  • and then

    you people are talking as if this is the first time Obama LIED*:

    http://theobamafile.com/ObamaLies.htm

    * yes LIED, as in said he was going to do something and then did another. Stop trying to warp it into a less egregious offense. Given that he has LIED, you can’t even argue any of his other merits which are nothing other than CLAIMS and PROMISES, which rest on CREDIBILITY, which he now has none of.

  • Invisible Eye

    At what point do our politics become so non-responsive that the electorate’s last hope is to collapse the house, that something may be sorted out of the ensuing chaos? After eight years of Democratic complicity with administration criminality, I think it entirely understandable to dismiss Mr. Obama as just another poser.

    And the quickest way to hasten political disintegration may be to extend Republican rule. If one has truly given up on the Democratic Party as change agent — quite reasonable, seeing its failure to mount any defense, though it now holds a majority of seats — it is humanly understandably that voters might pull the last timber in their grasp, if only that lever might bring the entire hollow mess crashing down.

    If so, the odds of a favorable outcome are slim. But no matter. I had hoped that the Democrats might have understood human nature better. Instead, it seems they may get a tour, come November, of a dark basement they refuse to apprehend.

  • http://mises.org/Community/blogs/tokyotom/default.aspx TokyoTom

    “But we have not yet earned the status of a majority.

    Um, Larry, I don’ know where you’ve been, but the Democrats ARE the majority party, in BOTH house of Congress. That they refuse to act like the majority party is one of the chief reasons why even Bush is more popular than Congress.

    While there is no good excuse for anyone from either party (certainly not anyone who cares about the rule of law or for limited government) to have vited for telcom immunity and further expansions of FISA, it’s perfectly legitimate to note that Obama is no exception.

  • Dennis

    LL, I’m a big fan, but I’m getting really tired of people saying this is a leftist issue. I’m a 20-year registered Republican, delegate to my state GOP convention, and volunteer for Ron Paul. I also donated a bit to Obama, and was planning to vote for him, until he got belligerent with Iran and caved on FISA. Now I’ll vote for Bob Barr. A lot of my friends are doing the same.

    The old FISA was just fine. The new one expands it to allow massive surveillance without warrants. Telecom immunity just adds insult to injury.

    Sooner or later, political analysts will start to realize that there is more than one dimension in politics. Maybe Obama’s rapid drop in the polls over the past few weeks will give them a clue.

    The big divide now is between people who believe in peace and civil liberties, who think that a free and open society is also a safe one, and people who think that freedom is just a luxury, to be abandoned when times are tough. And despite what the media seems to think, plenty of independents and Republicans are in the former camp.

  • Donald Duck

    Let me get this straight …

    Obama goes back on his word to filibuster the new FISA bill, but he takes it one step further, he votes yes to a bill that is in conflict with the constitution that he has sworn, on a bible, to uphold.

    And somehow you, Dr. Lessig, is claiming that it is my fault that I am disappointed? You have the nerve to call me hysterical? Your personal rights may not matter to you, but mine matter to me, and when people who claim to be champions of those rights turn out to consider them of secondary importance, then I am disappointed.

    My reply to you, Dr. Lemming, is that you should stop for a moment, ask yourself if the cliff edge you are headed towards is really one you want to go over?

  • John Millington

    Huh. All this left/right talk seems strange to me, especially the charge that Obama’s support for the new FISA bill is “centrist.”

    Surely, letting the relatively new(2001) and experimental wiretapping powers expire, so that the state of affairs would revert to the policies of the good old days (1978), was the *conservative* position — going back to how things used to be. And making the newly expanded government powers become permanent, as well as removing some inconvenient barriers, was the liberal position — radical change for the common good.

    Supporting this liberal bill showed that he is as liberal as the bill’s Republican backers. On this issue, at least, Obama raced the LEFT. He didn’t go left as hard as McCain and the current president, but moreso than many Democrats.

  • and yes…

    John Millington,

    the primary issue is not one of what quadrant this particular issue lies.

    It is the plain and simple fact that he blatantly contradicted his promise to his supporters.

  • http://www.socialsecuritybullshit.com Steve Baba

    I don’t think “Dr. Lessig/Dr. Lemming” has a Ph.D. any more than Dr. Obama has.
    Prof Lessig/Prof Lemming would be correct.
    Part of the problem is that all these J.D.s, especially Harvard JDs think they are Ph.Ds able to do Political Science, Economics, everything better than experts.

  • Affines

    The irony is that I bet most of the people posting here that are outraged over FISA are iPhone users (given that most of Lessig’s fan base consists of upper class Apple lovers), and the iPhone uses AT&T, which agreed to Bush’s illegal surveillance. And you can bet that these same people have no plans to switch to a mobile phone that uses phone services that didn’t go along with the wire-tapping. I guess the status symbol of the iPhone is more important than FISA. Yet these same people have the unmitigated gall to talk of how pure they are and how unpricipled anyone that dares disagree with them is. Hypocrisy at its finest.

  • Pepe

    Donald Duck said:
    “Obama goes back on his word to filibuster the new FISA bill, but he takes it one step further, he votes yes to a bill that is in conflict with the constitution that he has sworn, on a bible, to uphold.”

    Then again, maybe Obama and the rest of the Democrats in both houses that voted for this bill (and that’s about half of the Democrats) simply disagree with your view on this matter. (Not to mention that there weren’t the votes to support a fillibuster, so doing so would be quixotic grandstanding.)

    First, Obama never said he would fillibuster “the new FISA bill”.

    Second, at the time he said he would support a fillibuster of any FISA bill that contained immunity, he believed it, as the statement was made in the context of FISA proposals that were bandied about at the time, none of which were as good as the ultimate bill. Indeed, it was the hardline taken against immunity by Obama and other Dems that led to a bill that was so strong in the other parts. That is, the hardline against immunity was part of the negotiating/legislative process. Here’s what you don’t get: THE REPUBLICANS CAVED IN ON THIS BILL! They got the immunity, but caved in on the rest, which is the far more important part. Many, many democrats that opposed the previous proposals and took similar hard lines against immunity decided to support the ultimate bill even with immunity because it’s just that much better than the previous proposals. And guess what – THEY LOVE THE CONSTITUTION JUST AS MUCH AS YOU DO.

    Third, it’s not clear that the bill is indisputably unconsitutional, no matter how many times you and your ilk assert such. Granting immunity is certainly not unconstitutional. Are you really saying that one half of the Democrats and nearly all Republicans in both houses knowingly voted for an unconstitutional bill? Or could it be that they don’t agree that it’s unconstitutional? If you want to argue that it’s “wrong”, then fine, but don’t try to claim it undisputably violates that constitution.

    (BTW, if it *is* unconstitutional, then what are you worried about? The Supreme Court will overturn the bill when the ACLU case reaches them, right?)

  • Tom C

    Sir, you are merely an apologist now.

    Obama unabashedly promised to (a) vote against any law containing retroactive civil immunity for the telecoms in their aid of the government in warrantless wiretapping, and (b) actively filibuster any bill that contained that immunity.

    When the time came for him to put up or shut up, he (1) voted for cloture (thus closing off any hope of filibuster) and (2) voted for the bill, complete with retroactive immunity (providing the AG can show a “get out of jail free” note from the President, which nobody thinks will present any obstacle).

    You can make an argument over whether or not allowing the Executive branch to run roughshod over the Constitution and the rule of law is EVER a good idea, and since IANAL, I won’t try to make that argument.

    But he flip flopped, badly, and in the promise severely damaged the trust and hope that us “hysteric” Constitution-lovers had for him. You’ll have to pardon us for now living by the motto “fool me once, shame on you. Fool me twice, shame on me…”

    Lessig has clearly become just an apologist for Obama with this article; you all know damned well that had the flap over FISA been the opposite, that we “hysterics” all wanted warrantless wiretapping, that Obama had promised to vote for it and then turned around and broken his word, Lessig would be arguing the exact opposite of this present article — that wiretapping was bad “governance,” that Obama really didn’t PROMISE to wiretap, that he wasn’t REALLY going back on his promises…

    Apologists are always evident by one simple fact: the target of their apology is simply never wrong in any substantive sense (“of course, he may have made a small tactical error, but it’s not like he LIED…”).

    Anyone interested in a counterargument about why supporting the Constitution and the rule of law is not hysterical at all, but rather the only reasoned, principled position an American should take, should read Greenwald’s take on this (and incidentally, Mr. Lessig, he’s none too kind to you): http://www.salon.com/opinion/greenwald/2008/07/12/torture/index.html

  • and then…

    ppl of the US,

    ARE WE SO BLIND as to let some ‘pie in the sky’ promises from a politician that appeared out of no where a few years ago outweigh the plain and simple fact that he is not a man of his word? Without trust all we have a smooth talker.

    ARE WE SO MANIC as to let our impossible desires cloud our vision of a man who is clearly deceptive?

    ARE WE SO DESPERATE that we will choose someone out of spite (as Joy G. suggests) rather than react to someone who has seriously betrayed our trust?

    ARE WE SO BROKEN as a people that we apologize and make excuses for someone who takes our trust and our confidence and sells it out to the highest bidder, even before gaining the presidency? The BS-sellout lifecycle is now so short that a career politician can’t even go long enough to make it into office! Our system is so broken we are better off voting republican and letting the system break itself, only then can we salvage what is left.

  • http://thewall.civiblog.org/rsf/nsa.html David Manchester

    I converted a bunch of widely scattered pdfs to web pages with links a while back, all relating to this issue.

    The collection is here:

    http://thewall.civiblog.org/rsf/nsa.html

    The downloadable collection is here:

    http://thewall.civiblog.org/rsf/012006_HouseDemJudBriefing.zip

    EFF v. ATT Complaint (initial filing):

    http://thewall.civiblog.org/rsf/att-complaint.html

    ACLU v. NSA :

    http://thewall.civiblog.org/rsf/aclu-nsa-complaint.html

    - dcm

  • Zippy

    And so the dishonest and egregarious mischararacterization of the bill’s critics continues. Anything to elect Obama, it seems. One of the most common talking points is denigrating the critics as “hysterical” and “leftists.” That’s a convenient way of ignoring the bill’s contents: How it does away with any of the Fourth Amendment’s specific individualization requirements and probable cause, substituting only a judicial certification that the target is “reasonably believed to be outside the United States” and a judicial certification of the Executive’s general minimization requirements. The Founders of this nation didn’t believe in general warrants.

    By the way, it’s also a dumb bill: allowing unspecified monitoring of communications with no oversight imperils U.S. security both by making secure government communications more hackable (see http://www.crypto.com/papers/paa-ieee.pdf ) and wasting resources going down the inevitable blind alleys and snipe hunts (see http://www.schneier.com/blog/archives/2006/03/data_mining_for.html ).

    Well, fuck you, Larry. We do Obama no favors when we uncritically back him, right or wrong (not unlike “my country, right or wrong”–or “my mother, sober or drunk”), and demonize thinking critcisms of a terrible bill that essentially legalizes Bush’s spying regime (and, yes, I have read the bill). Mark my words, this will come back to haunt him.

    There was a time when I thought you were intellectually honest, long before your role in the Microsoft trial made you known to mom and pop.

    But I guess victory is more important.

  • zenwick

    Hysterical post, all right. Hysterically funny, anyway. You west coast law guys crack me up. Was this really written by Lawrence Lessig, or was it perhaps ghosted by John Yoo?

  • http://www.ezedir.com Thomas kal

    Just say about the hysteria that has broken out among we on the left in response to Obama’s voting for the FISA compromise was totally predictable and The National campaigns are dominated by people who believe a leftist can’t be elected to national office.

    Thomas,
    http://www.ezedir.com

  • http://gollyg.blogspot.com Dr Zen

    “Getting a regime that requires the executive to obey the law is important.”

    And if they won’t, let’s write them some laws they do feel like obeying!

    This sort of post describes how the fascists have been able to get away with it. Too many centrists (you’re no liberal, son) want to pander to the other side in the name of democracy. None of them do! When will you idiots wake up? They are at war with you while you want to have a tea party with them.

  • Zippy

    Just say about the hysteria that has broken out among we on the left in response to Obama’s voting for the FISA compromise was totally predictable. . .

    Yet another person who clearly knows nothing about the bill, or even its opponents (since when did Amnesty International or Bob Barr become part of “the left”?), and is perfectly comfortable with that woeful ignorance.

    Thanks for making my point for me.

  • Zippy

    (BTW, if it *is* unconstitutional, then what are you worried about? The Supreme Court will overturn the bill when the ACLU case reaches them, right?)

    No, that’s not guaranteed. The Court is already unreliable on such issues (Kennedy being the swing vote), and the issue of demonstrating “standing” (i.e. actual harm which deserves judicial redress) is notoriously difficult when all the details are classified. A similar challenge to Bush’s illegal program was punted by the Court on just such reasoning.

    And eliminating civil liability for the telecoms retroactively, apart from the abuse of the litigants’ due process, will make it that much to harder to find out those details, and the higher standard of proof for criminal prosecution of the telcos (which won’t happen–count on a last-minute pardon) will make redress all but impossible.

    What this bill did what legalize Bush’s spying program and cover up the illegal part. Plain and simple.

  • and then…

    people who believe a leftist can’t be elected to national office.

    I believe a leftist cannot be elected to national office because they tend to be liars.

  • oisin

    “Getting a regime that requires the executive to obey the law is important.”

    So this is the Democrats’ strategy for getting the president to obey the law: rewrite the law to say, “the president can do whatever he wants.”

    Now, you have to admit this is brilliant. There is no way the president can break that law. Go Dems!

  • oisin

    “it is not “compromising” to recognize that we are part of a democracy.”

    By “democracy” here, the author means majoritarianism (the rest of the paragraph makes this clear). However the very idea of a “right” as in “Bill of Rights” and specifically as in “Fourth Amendment,” is that of something that is not subject to negotiation or compromise in the everyday world of political horse-trading. If you can’t grasp that, you just don’t know the first thing about what is at stake here.

  • Bob

    Professor, I have followed your career with great enthusiasm for years. You are clearly an outstanding legal scholar, and your position on this issue gives me pause to reconsider mine. I would like to hear you elaborate on the specific concern I have: Petition for Redress.

    I do not have a problem with Obama failing to keep his promise. I understand that political and governmental facts change and some promises must be broken.

    I do have a problem with 72 Senators failing to vote against this bill (69 voted for, 3 did not vote). I believe that by granting retroactive immunity in cases pending before the judicial, the Senate (and the House before it, and the President after) infringed our right to petition for redress of grievances. The power of the people to correct the government without violence ends with the right to petition for redress. How can infringing that right ever be justified?

  • http://flickr.com/photos/shandrew/ Andrew S

    These are the reasons why it’s been so long since a senator has been elected to the White House.

  • Mary

    Um…Can you give three EXAMPLES of how he’s not liberal, ESPECIALLY in his voting record?

    P.S., you need a new CAPTCHA function. This is ridiculous.

  • Zippy

    I remain disturbed by those who see the issue in terms of whether Obama is “liberal,” “centrist” or whatever. Not only are such terms fairly subjective, that’s not even mildly relevant to the issue.

    What’s relevant is that this bill passed under a Democratic Congress, despite not being anything close to a centrist bill. It is, in fact, breathtakingly radical. Yet Obama joined the House leadership on this for reasons that still remain unclear. And it matters not one bit if you’re an Obama supporter or not (one of the bill’s most eloquent critics, Glenn Greewald, was–and remains–an Obama supporter). What matters is the merits of the bill itself, even if it also raises serious questions about the Democratic nominee.

    Incidently, Nancy Pelosi’s support (she’s from San Francisco, you know) makes this dark chapter in American history all the more baffling. Was it about protecting Jane Harman from possible prosecution, or what? What on Earth was the motivation?

    Unfortunately, during election years people tend to get consumed with political spin, which doesn’t usually come close to reflecting reality: it certainly doesn’t in this case.

  • http://%URL% reputation management

    Whats up arе using Woгdpгess for yоur blоg platform?
    I’m new to the blog world but I’m trying to gеt
    ѕtarteԁ аnԁ create mу oωn.
    Do you neеd any html coding knoωlеdge to make уour
    own blog? Any hеlρ ωoulԁ be reаlly aрρrесiated!