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By: Zippy Sun, 20 Jul 2008 06:28:37 +0000 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.

By: Mary Sat, 19 Jul 2008 23:09:35 +0000 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.

By: Andrew S Sat, 19 Jul 2008 06:12:25 +0000 These are the reasons why it’s been so long since a senator has been elected to the White House.

By: Bob Fri, 18 Jul 2008 07:02:03 +0000 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?

By: oisin Fri, 18 Jul 2008 05:31:18 +0000 “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.

By: oisin Fri, 18 Jul 2008 05:19:58 +0000 “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!

By: and then... Fri, 18 Jul 2008 04:07:31 +0000 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.

By: Zippy Thu, 17 Jul 2008 08:36:27 +0000 (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.

By: Zippy Thu, 17 Jul 2008 08:23:52 +0000 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.

By: Dr Zen Thu, 17 Jul 2008 08:06:09 +0000 “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.

By: Thomas kal Thu, 17 Jul 2008 07:13:29 +0000 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.


By: zenwick Thu, 17 Jul 2008 03:48:29 +0000 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?

By: Zippy Wed, 16 Jul 2008 00:36:21 +0000 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 ) and wasting resources going down the inevitable blind alleys and snipe hunts (see ).

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.

By: David Manchester Tue, 15 Jul 2008 23:59:33 +0000 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:

The downloadable collection is here:

EFF v. ATT Complaint (initial filing):


- dcm

By: and then... Tue, 15 Jul 2008 15:55:17 +0000 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.

By: Tom C Tue, 15 Jul 2008 14:03:48 +0000 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):

By: Pepe Tue, 15 Jul 2008 10:16:34 +0000 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?)

By: Affines Tue, 15 Jul 2008 09:41:24 +0000 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.

By: Steve Baba Tue, 15 Jul 2008 08:39:00 +0000 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.

By: and yes... Tue, 15 Jul 2008 07:58:11 +0000 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.

By: John Millington Tue, 15 Jul 2008 05:18:03 +0000 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.

By: Donald Duck Tue, 15 Jul 2008 04:45:37 +0000 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?

By: Dennis Tue, 15 Jul 2008 01:47:53 +0000 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.

By: TokyoTom Mon, 14 Jul 2008 14:31:11 +0000 “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.