I Don’t Think “FISA” and “Expire” Mean What Obama Thinks They Do

/in /by

There’s a really disturbing line in this article on backlash against Obama for his FISA stance (say "hi" to Jane, Glenn, and Markos as you read).

Greg Craig, a Washington lawyer who advises the Obama campaign, said Tuesday in an interview that Mr. Obama had decided to support the compromise FISA legislation only after concluding it was the best deal possible.

“This was a deliberative process, and not something that was shooting from the hip,” Mr. Craig said. “Obviously, there was an element of what’s possible here. But he concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.” [my emphasis]

Either Greg Craig is not the guy the Obama campaign should have discussing–much less advising him on–these issues, or Craig is simply repeating Obama’s profoundly erroneous logic.

But in either case, FISA is not expiring anytime soon. Last I checked, FISA’s been on the books for 30 years, and I have every expectation it will remain on the books for the next 30 years, regardless of how Obama votes on July 8.

Either Craig or Obama is making the common–but ignorant–mistake of conflating the Protect America Act with FISA. The former does expire in early August. The latter does not.

I might be accused of pedantry by maintaining this distinction. But its useful to maintain the distinction because it focuses on the differences between FISA and PAA. FISA provides a way for the government to wiretap individuals legally, while providing real protections for American citizens. Whereas PAA provides the government the ability to get basket warrants based on the say so of the Attorney General, dramatically eroding the protections for American citizens.

When someone erroneously claims that FISA is going to expire shortly, it’s a good bet that that person is thinking about retaining the basket warrant provisions of the PAA and not–as the spin suggests–simply "modernizing" FISA so the government can wiretap foreigners via telecom circuits in the United States. 

It’d be useful if someone asked the Obama campaign which of these authorities Obama is really intent on maintaining.  

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    • emptywheel says:

      It’s actually an interesting op-ed. Someone shoudl ask, though, how diminishing the voting rights of brown people as AGAG has helped people get equality of opportunity?

      • MarieRoget says:

        Interesting piece, yes, & yet another try @ rehabilitating his image (as if that might actually be possible).
        And, please let’s not mention those inconvenient vote suppression facts from his term as AG, only the good he accomplished. That thimbleful of good stuff Fredo may have accomplished @ some point in his term (having to do w/kiddie porno wasn’t it?)

  2. klynn says:

    Thank you for catching this EW and crew. This is a mighty fault and needs acute clarity ASAP by the Obama camp. How about we all get to calling the headquarters and start pointing this issue out and ask the question.

    …which of these authorities Obama is really intent on maintaining?

    PAA or basket warrents? Because, Mr. Obama, FISA does not expire soon.

    Have you thought of getting a more competent lawyer than Craig to advise you?

    This is a push back against the ground swell.

    Call here: (866) 675-2008 option 6

    Now if Craig thinks this is a step in the direction of declaring independence from a broken system (Obama’s words, not mine), sounds like his advice to Obama is broken too. The only fix is to uphold the Constitution and get one’s understanding of FISA correct. A correct understanding is a sign of leadership.

    • Leen says:

      How is your son? Is he going to make a public statement about what he is feeling about the Bush administration?

  3. AZ Matt says:

    Maybe someone ought to explain to the losers in wingnuttia that President Obama will soon be reading all ther e-mails, text messages, telephone call transcripts, etc… . Well, maybe that won’t bother them cuz they will feel safer.

  4. danps says:

    After all the careful reading you do every day it must be nice to occasionally pick off some low hanging fruit, eh?

    Seriously though Criag looks really bad with talk like that.

  5. wavpeac says:

    Here’s what gripes me. WE all know that Obama has had a HUGE outpouring of negative calls and faxes and letters. I talked to several of his “people” who confirmed this and two who shared my opinion.

    Why can’t he use his rigid stance to stand up for Clark…no shame, not validate the shame being thrown on him, by doing opposite. (which is how you decrease it and convince folks you have nothing to be guilty for). He should be doing his “Rigidly”. Refusing it, acting as if he feels no shame, holding his head high, defending Clark as if the comments are silly. This would be valid. Clark said nothing that requires shame or amends.

    Then when it comes to fisa, he should be exhibiting some flexibility when his constituents are clearly upset about his position. He should be saying “I’ll look more closely at this” instead of “I know what I will vote and I have made up my mind”.

    Something about this just doesn’t cut the mustard. (I have no idea what that means…)

    I guess it means that I don’t like it. I don’t know what it says about Obama but it bothers me.

  7. Hugh says:

    Shorter Obama: If I don’t support this, we are all going to die.

    This is very different from the Bush position: If you don’t support this, you are all going to die.

    I don’t see how the two can possibly be confused.

  9. wkwf says:

    Whatever Greg Craig thinks about whether FISA is expiring or not, Obama’s position statement on FISA 2.0 (http://talkingpointsmemo.com/archives/201032.php – the Preview-generator generates incorrect href code, that’s why I didn’t want to risk creating a broken link) seems to indicate that Obama (and/or his campaign) understand the distinction between FISA and PAA. Which is what makes his position on FISA 2.0 so frustrating.

    So what are the choices here:
    – Obama didn’t write and read the position statement himself (or didn’t clearly understand the issues himself), but had his campaign offer up this statement as a quick solution to get a response to the DFHs clamoring for leadership from him on this issue.
    – He did at least understand the issue and still decided to stake this position.

    Oh well.

    • bmaz says:

      Oh, they know the score; neither Craig nor Obama is that stupid. They are simply doing what all the craven Goopers have been doing all along, and picking up and using the line that sells the pile o crap to the uninformed populous the best. It is really no different than that.

  13. yonodeler says:

    All Members of Congress should be examined closely on their knowledge of FISA issues and all surveillance, personal data collection, and law enforcement issues. We don’t need any we’re-only-legislators cop-outs or forever-newbie excuses. And the Members should be judged in part on the staff they select and the advice and resources they the Members consult and inform their positions by.

  14. DeadLast says:

    Obama’s people called yesterday asking for money — again. I like Obama. but I said no more money unless Obama does something to stop telecom immunity.

  15. BooRadley says:

    I just called Craig’s office at wc. His assistant appeared understood that her boss had given inaccurate data to the NYTimes. She gave me her email and I sent her the link to this post.

    Then I called Obama’s DC office. Nice people, I tried to explain that FISA isn’t expiring. I’m not sure they understood.

  16. brendanx says:

    Jim Webb, for example, also voted against the 4th amendment. But he, at least, had a baby in the bathwater. I don’t get Obama’s motive; I’m skeptical this has anything to do with the politics of “national security credentials” or any other appeal to actual voters. It seems more of a dirty little deal among Senators.

  17. WilliamOckham says:

    OT (but important). You’ve all probably seen the news about the Gitmo torture techniques coming from the Chinese during the Korean war. The actual article is online. Here’s a comment I posted over at Balkinization. I find this a little beyond chilling:

    The article itself is online. You can find it here.

    A few quotes:

    Second, one form of torture was experienced by a considerable number of Air Force prisoners of war during efforts to coerce false confessions from them. The prisoners were required to stand, or sit, at attention for exceedingly long periods of tinme-in one extreme case, day and night for a week at a time with only brief respites. In a few cases, the standing was aggravated by extreme cold. This form of torture had several distinct advantages for extorting confessions.

    ….

    Where the individual is told to stand at attention for long periods, an intervening factor is introduced. The immediate source of pain is not the interrogator but the victim himself. The contest becomes, in a way, one of the individual against himself. The motivational strength of the individual is likely to exhaust itself in this internal encounter. Bringing the subject to act “against himself” in this manner has additional advantages for the interrogator. It leads the prisoner to exaggerate the power of the interrogator.

    …

    For the interrogator, forced standing has still further advanitages. It is consistent with formal adherence to mythical principles of legality and humaneness important to the Communists. These principles are important in the interrogation-particularly in facilitating the adoption of a positive attitude by the prisoner toward the interrogator and the forces he represents. Adherence to these mythical principles also protects the interrogator from potential punishment at some future time for mistreating prisoners. The Communists, furthermore, can gain a considerablc propaganda advantage when victims who are released truthfully state that no one ever laid a hand on them.

      • brendanx says:

        Here are The Simplest Methods That Will Break the Will from Solzhenitsyn’s “Gulag Archipelago”.

        Meanwhile here is a snippet from mediation on the great man — who long ago lost his utility to them — from the National Review:

        …When she was young, in Beijing — in the teeth of the Cultural Revolution… she found Solzhenitsyn. When she read Cancer Ward, she thought she was reading of her own experience. She was astounded that Solzhenitsyn could understand her — and her fellow Chinese — so well. The first night, she told me, she was so excited by what she was reading, she couldn’t sleep. Then she managed to get a hold of one of the very few copies of The Gulag Archipelago in the whole of China. When she read it, she knew what she had to do with her life: commit the lives of the lost to historical memory.

  18. MarieRoget says:

    Obama making this type of conflation mistake is really troubling. It’s not pedantry to point out what may be a deliberate muddling of FISA & the PAA, ew. I don’t know which is worse, deliberatly clouding this issue, or doing it out of ignorance. My daughter is an Obama-ite & she told me his stance on FISA is creating a “sort of malaise” for her. For me, who wanted Edwards in the WH above anyone else, it’s more like a three alarm fire w/sirens blaring. Dammit.

    If Obama is trying to straddle the fence on this so as to come out looking like Mr. Compromise Bi-Partisan while using a conflation of FISA/PAA or any other smoke&mirror tactic, well, it can get awfully effing pointy up on this particular fence top.

  20. JTMinIA says:

    In a way, it’s almost like the Obama campaign is playing a weird game of chicken with the Informed Left (cf. the Great Unwashed). Will we call them on this sort of thing or suck it up in fear of the alternative?

    • Hugh says:

      In a way, it’s almost like the Obama campaign is playing a weird game of chicken with the Informed Left (cf. the Great Unwashed). Will we call them on this sort of thing or suck it up in fear of the alternative?

      Not much of a game of chicken for me. I have already withdrawn my support of Obama over the FISA issue. His statements about extending funding of faith based initiatives has not helped.

      • brendanx says:

        …extending funding of faith based initiatives…

        Instead of giving to his campaign again, maybe I’ll just cut out the middleman and donate to my neighborhood church.

  21. yonodeler says:

    Prospects look grim that either Obama or McCain as President would exercise much compunction about legality and truthfulness in matters of constitutional freedoms. Anyone who doesn’t have that compunction can’t assure me anything about security.

  22. Glorfindel says:

    For what it’s worth, here’s what I see is happening:

    Cheney wants his “get out of jail free” FISA capitulation bill. He wants his war funding and other schemes to go forward.

    The greasing of the “attack Iran” skids, the uptick in the sabre rattling, the unleashing of leaks about imminent attack, are all meant as threats to the Congress and Obama that he’ll do it, he’ll do it, if they don’t give him what he wants. And they believe him.

    Or some do. The problem is, some Senators are still cynical enough to recognize that after any capitulation, there’s no reason for Cheney to stand down. In fact, he won’t. He’ll recognize that they crumble beneath him, that he’s gotten his triumph in Congress, and then go ahead attack Iran anyway.

    That’s what I think we’re looking at.

    • brendanx says:

      This is the fallacy of thinking “our” politicians are inherently good and can only be coerced into doing things they abhor.

      • Glorfindel says:

        Not sure whom you’re stabbing at here. If it is I, then let me say that I view most all politicians as lacking in virtue. For what that’s worth. Nor do I consider many other commenters as being full of wisdom either.

        Personally, I think Obama’s quite aware of the crap he’s enabling here. And I think he’d rather oppose it. But since he’s turned round, at just this moment, caving on his previous publicly stated position, I was speculating as to why. You of course can think whatever you please.

  23. Mary says:

    I’m not sure that “compromise” means what Obama thinks it does either.

    As best I can tell, here’s what “teh program” needs if it is suddenly, magically, going to be operated for purposes other than handoffs to John Bolton and scheduling more FBI Pizza Hut visits.

    1. Establishment of a non-judicial, non-FISC supervised, unilateral Executive branch-administrative warrant system for hordes of people within the Dept of Justice and also in all kinds of intelligence related agencies, with no respect for or training in, law (or even baseline civics), to be able to traipse around through communications like Tiny Tim in the tulips. The compromise? Caving. Not only are they giving a retroactive amnesty, they are setting up a system that pretty much makes a mocker of FISA’s continuing felony provisions, because there’s no way any Executive Branch felon won’t be able to claim cover under the new adminsitrative approach that is supposedly carved out as an exception, but which basically has swallowed the whole.

    2. The ability to keep stored for unlimited time periods, massive amounts of communications involving US citizens on US soil to be trawled through at leisure by the persons listed in 1 and by any hackers and Executive branch criminals (ok, the non-existing FISA felons – more in the nature of the Target theft by deception criminals). This includes communications of lawyers, confidential trade and business information, communications of judges, politicians, etc. The compromise? Caving.

    3. The ability to completely ditch former caselaw and FISA requirements that non-judicial warrants were only acceptable when interceptions involved agents of foreign powers and were for national security purposes and replace it with a free-for-all approach whereby any “foreign” nexus of any trivial kind can be used as the excuse for surveillance where there is NO PROBABLE CAUSE to believe that anyone whose communications are being seized and searched is an agent of a foreign power and to top that off, where the PRIMARY PURPOSE of the surviellance is to try to pursue goals such as criminal prosecution where there is no probable cause to get a warrant issued by a real court. Compromise? Cave.

    4. The ability by yahoos in 1, to take the info stored in 2, and with no definable probable cause, no agent of foreign power aspect and with a purpose of evading the requirements of criminal warrant probable cause – to then engage in massive “basketed” administrative authorizations (you can’t really even call them administrative warrants by this time). Compromise? Cave.

    And again, as best I can tell, the only real justification proferred has been that “everyone” wants to be able to sift/sort through emails in a data mining approach that probably is prohibited by FISA right now. Instead of coming up with a targeted approach to resolve the emails issue in a manner that has real and actual safeguards, they have just collectively passed some of the most atrocious legislation imaginable.

    All this, btw, with the sure and certain knowledge that none of what they are doing begins to pass Constitutional muster.

    I guess in his efforts to “unite and not divide” us, Obama has managed to reach out to the other Uniter and come to an agreement on what “Executive Power” means. Happy 4th.

  24. Mary says:

    28 – that actually made me smile. I didn’t think that was going to happen this morning.

    But on 33 – I’m kind of getting a kick out of being able to talk to a few select people I can think of about how it’s nice to see that Obama will be using Bush’s powergrab in the Executive to find a way to direct all kinds of money and support to black activist churches like Trinity and to some Muslim mosques and some Catholic sanctuary churches and some gay Episcopalean branches and – golly, maybe I’m not in favor of separate of church and state after all anymore. *g* + ;>)

  25. ohioblue says:

    I remember reading in an article about Obama (sorry no link, either Time or Newsweek early on in his campaign for the Democratic nomination) that during his time heading the Harvard Law Review no one ever knew how he stood on anything, but he was sure great at building consensus.

    The article worried me then, it scares me now.

  26. Mary says:

    OT – but Scott Horton has a 6 questions up with the author of a Rove book and one thing that gets mentioned in the response to a question is that there has been talk that Ralston deliberately changed Rove’s calendar to cover up meetings he had with Abramoff. Was that info or spec out there before?

    • emptywheel says:

      Not publicly. But I still wouldn’t be surprised if he were indicted in issues relating to Abramoff.

      Incidentally, his list of reasons why Rove was ousted (which came from a Bush counselor from Texas, so someone like Bartlett or Hughes) pretty nearly matches mine. Not bad, I say!

  27. klynn says:

    O/T

    Had an informative read of this build up to Iran Timeline again @ Rawstory EW. It had a great deal of overlap to the Ghorbanifar Timeline despite its’ being written in 07. Knowing you, and timelines, I figured you’ve given it a glance. Still worth sharing…

    Here it is:

    http://rawstory.com/news/2007/….._0125.html

  28. bgrothus says:

    I attended an organizing meeting for the BO campaign last night and raised the FISA issue. There was a lot of additional grumbling in the audience after the meeting, numerous folks thanked me for raising the issue.

    I also called the number above and talked to some staffer in the O8 office about the issue. He said that O is trying to get the immunity out of the bill. But that is not enough. I said, “Maybe O wants to use warrantless wiretaps too.” Etc.

    I am not very happy with the way it all seems to be going. We cannot give up, gotta keep after it.

  30. JohnLopresti says:

    WallStreetJournal has a biography of a tech person who was involved in innovative design that the fisa law resolved. GCraig simply mixed up two concepts. I see BObama as providing congress more chance to improve fisa once elected. McCainAZ has gone radical right in most of his campaign recently, affording BObama a lot of room in the center and even somewhat right of center.

  31. kspena says:

    Austin’s Scott Horton will interview Bob Perry in 15 minutes. There was a mixup yesterday. Scott in interviewing Jacob Sullum of Reason Magazine on Obama’s stance on FISA now.

    “Robert Parry will be discussing Iran Contra’s “lost chapter,” the status of those imprisoned at Guantanamo Bay and the doctrine of the unlimited presidency at 1:15PM Eastern”

    http://www.kaosradioaustin.org/

  32. wigwam says:

    Hi Marcy. The PAA was passed in August 2007 and already expired in mid-February, while the Republicans were holding their breath and the House Democrats found some spine. The year-long surveillance programs approved under the PAA beging expiring in August 2008 and all of them will have expired by mid-February 2009.

      • PetePierce says:

        Excellent posts and points you made at KOS. Make ‘em directly to Greg Craig by linking them to him and also some of the posts at FDL and at EW elucidating the real FISA/PAA story on these threads recently and the horrible shortcomings of the bill they are passing.

        I sure as hell plan to do just that and I plan to link your posts and a number of them here for Craig and to make the points that we have been making for months. He needs to understand we aren’t the idiots he seems to perceive us to be. You don’t have to be a Williams and Connolly partner to get the legal nuances, the phony portrayal of this bill, and it components and the huge cover this administration’s ass and this congress’s ass implied by the immunity fiasco alone.

        202-434-5506 (phone)
        202-434-5760 (fax)

        Email Craig at [email protected]

        • PetePierce says:

          He’s superlative and he’s had a lot of traning and experience sorting out constitutional law. He can smell a bullshitter thousands of miles away and always does. He did it as a day job for many years. You did a nice job as well.

        • wigwam says:

          Hi Peter. Thanks. I’m not exactly trained for this stuff. I’ve wondered how Glenn does it. Does he have a staff? How big? He’s obviously skilled with Lexis/Nexis, etc. And probably very proficient with research tools I’ve never heard of. Also, a huge email network of some of the best of the blogosphere.

          Not that I have any desire or illusions of competing, but simply that I admire his work so much. Every morning, I have these why-didn’t-I-see-that moments and where/how-did-he-come-up-with-that moments.

    • yonodeler says:

      Relatively few in Congress want to see how we’d do without drastic amendments to FISA, but I’ll do what-if anyway.

      Without any of the new FISA amendments being passed and becoming law, the surveilling agencies could, as PAA programs expire, apply for warrants that would continue targeted surveillance that should not be abandoned, even applying for warrants up to 72 hours after the surveillance is commenced/continued. There need be no fear of losing surveillance of targets that have been surveilled for what FISC considers adequate cause. Is that how you see it?

  34. dosido says:

    I couldn’t believe this expiration thingie was being repeated on liberal radio last week! I mean, the House voted down the original senate bill by standing up to this BS and now it’s being held forth as a reason for vote for a bogus bill. argh! glad to know you could pinpoint the erroneous source of this crap, marcy.

  35. lamod3 says:

    This really jumped out when I read the article. I can’t believe the reporter didn’t follow up. For those of us who remember the drafting of FISA (when I was a college kid), it’s especially shocking. I share the goal of making sure FISA remains the exclusive statute on this matter, but we should remind our legislators that this fight is not about the telecoms – it’s about failed oversight by them (and the judiciary) of our fourth amendment rights and hard faught for statutory protections.

  36. perris says:

    late to this thread but I am CERTAIN three are people either here or the lake that can get the word back to the obama camp, they are either getting it wrong or they are lying to the voters

    either way, they have to change their position if they are to regain the respect and hope we once had for this senators presidency

    GREAT post marcy

  37. rdwdkw says:

    Marci, you need to tell Obama to give you an hour or so of his time to clear some of this up, you think?

  38. PetePierce says:

    It’s hardly pedantry. It’s the distinction and it’s one that is a quantum leap between informed analysis from Marcy and Bmaz and the general level of the comments here and MSM. Greg Craig may or may not know better. I frankly doubt it and we all hope that with his Harvard Law Review President hat on, Obama can damn well tell the difference.

    I know many of you have been deeply involved in letting Congresspeople–Senators and Congress know how you feel. I know many of you have probably posted your specific feelings and some of the nuances seen here but not in MSM on Obama’s comment pages.

    You want to copy your comments to Greg Craig’s direct email and it’s here:

    202-434-5506 (phone)
    202-434-5760 (fax)

    [email protected]

    But you can really stuff it into the horse’s um mouth and put these comments where they will be noticed by someone who counts in the Obama campaign. I know that there are a lot of eliptical connections that Marcy, Jane, Christy may have with some of the principle law makers and their staffs and those are awfully important and helpful.

    But each and everyone of you can give your comments–and the wisdom of Marcy, Bmaz, Christy, LHP, Cboldt, Mary, Selise, Maddog and many commenters with great insights too numerous to name on thes FISA threads.

    One of the major policy advisors on these legal issues is Williams and Connolly’s Greg Craig. Craig was extremely tight with Billiary at Yale renting them their first love shack for next to nothing. He orchestrated the impeachment defense behind the scenes. Now he’s key in Obama’s campaign.

    When I read this in the NYT this morning I was glad that these blogs here are getting some much deserved notice in NYTimes–I would have liked a 2-3 page article on Marcy Wheeler and this blog, a couploe pages on the work Glenn Greenwald does, and another two pages on the screwups by Eric Lichtblau in the Times as well.

    Take the comments you are making to lawmakers and on Obama’s blog pages and copy them to the horse’s mouth himself–Greg Craig who has become a major policy maker and legal advisor to Obama.. That way Craig, Obama, and other key advisors have a much greater chance to read them.

  39. PetePierce says:

    Someone has presciently begun to tell the truth but just begun on the Wikipedia entry for Greg Craig.

    We can help fill in the blanks on the distortions by Congress for MSM consumpion and the glossing over of the components and meaning of the FISA fiasco as spelled out on these blogs:

    [edit] Controversy Surrounding Senator Obama’s FISA position shifts and Craig legal knowledge
    In his role as a spokesman for Senator Barack Obama’s presidential campaign, Craig has addressed the Senator’s reversal from earlier committments to filibuster the FISA Amendments Act of 2008.[13] Craig’s explanation of the reversal included a quote that Senator Obama had “concluded that with FISA expiring, that it was better to get a compromise than letting the law expire.” This quote drew criticism that Obama and/or his legal advisors (who, including Craig, are all trained lawyers) were repeating the legally erroneous statement that the Foreign Intelligence Surveillance Act was expiring.[citation needed]

  40. Leen says:

    Or Obama and Craig are repeating what EW has referred to as “profoundly erroneous logic” as a strategy. How could they not know?