Obama Votes to Silence Debate and Pass FISA

by John Nichols

Arizona Senator John McCain did not bother to show up for Wednesday's Senate votes on whether to amend the Foreign Intelligence Surveillance Act to absolve George Bush of responsibility for initiating an illegal warrantless wiretapping program and to provide retroactive immunity to the telecommunications corporations that violated the privacy of their customers in order to collaborate with a lawless president.

But that's O.K., Illinois Senator Barack Obama cast the votes that McCain would have.

In addition to joining the majority in a 69-28 Senate vote to approve legislation that the American Civil Liberties Union describes as "a Constitutional nightmare," Obama backed a key move to silence debate on the FISA bill.

During a day of decisions on amendments, cloture and formal approval of the FISA rewrite, Obama cast several votes in favor of failed amendments to limit certain forms of retroactive immunity for the telecommunications corporations. But, in the essential votes on whether to advance and pass the unamended bill, the senator from Illinois broke the majority of his Democratic colleagues -- including New York Senator Hillary Clinton -- as they worked to keep the debate open and block final passage.

In the case of the cloture vote, the presumptive Democratic nominee for president sided with Republicans who argued that the essential Constitutional questions raised by the White House-backed FISA legislation did not merit extended or thoughtful debate.

Seventy-two senators backed the move to end the debate, while 26 sought to keep it going. Two senators - McCain and ailing Massachusetts Democrat Edward Kennedy - missed Wednesday's votes.

Those 26 "no" votes on cloture were cast by Vermont Independent Bernie Sanders and 25 Democrats, including Majority Leader Harry Reid, D-Nevada, Assistant Majority Leader Dick Durbin, Obama's Democratic colleague from Illinois, and Clinton, Obama's primary competitor for the Democratic presidential nomination.

Leading the fight to keep the debate about the FISA rewrite open were Connecticut Democrat Chris Dodd and Wisconsin Democrat Russ Feingold, the two senators Obama promised earlier their year to work with in an effort to block this assault on the Constitution and corporate responsibility.

Said Feingold, "I sit on the Intelligence and Judiciary Committees, and I am one of the few members of this body who has been fully briefed on the warrantless wiretapping program. And, based on what I know, I can promise that if more information is declassified about the program in the future, as is likely to happen either due to the Inspector General report, the election of a new President, or simply the passage of time, members of this body will regret that we passed this legislation. I am also familiar with the collection activities that have been conducted under the Protect America Act and will continue under this bill. I invite any of my colleagues who wish to know more about those activities to come speak to me in a classified setting. Publicly, all I can say is that I have serious concerns about how those activities may have impacted the civil liberties of Americans. If we grant these new powers to the government and the effects become known to the American people, we will realize what a mistake it was, of that I am sure."

Unfortunately, while Obama once promised to work with Feingold, he wasn't listening on Wednesday when the Wisconsin senator explained to his colleagues that granting retroactive immunity to the telecommunications corporations would effectively block the ability of Congress and the courts to address not just massive corporate wrongdoing but attacks on the privacy rights of Americans.

"If Congress short-circuits these lawsuits, we will have lost a prime opportunity to finally achieve accountability for these years of law-breaking," said Feingold, who flatly rejected Obama's argument that, while unappealing in some aspects, the FISA rewrite was somehow acceptable as a whole. "That's why the administration has been fighting so hard for this immunity. It knows that the cases that have been brought directly against the government face much more difficult procedural barriers, and are unlikely to result in rulings on the merits."

Russ Feingold was speaking the truth about a moment in which the ACLU said the Senate was on the verge of passing "an unconstitutional domestic spying bill that violates the Fourth Amendment and eliminates any meaningful role for judicial oversight of government surveillance."

But Barack Obama did not want to hear it.

John Nichols, a pioneering political blogger, has written The Beat since 1999. His posts have been circulated internationally, quoted in numerous books and mentioned in debates on the floor of Congress.
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