Maybe Obama Actually Means It: FISA

For the last couple of days, the news has become increasingly unwatchable to me, because it drives me stark raving nuts when everybody, and I mean everybody, who's speaking up on a news story has it wrong. Or, in this case, two news stories: Barack Obama's announced support for telecom immunity, and Barack Obama's announcement that he intends to reform and expand the Bush Administration's Office of Faith-Based Initiatives, elevating it even higher in importance in his administration than it was in this one. And all week long, almost every single reporter and analyst, regardless of their politics, has read these two stories the same way. Senator Obama, they have concluded, is "tacking towards the center," announcing policy positions that he doesn't believe or doesn't care about, in order to distance himself from the (presumably unpopular) Democratic wing of the Democratic Party, to make himself appear to be more "moderate" and therefore less "radical" or "liberal" to the (presumed to be anti-liberal) American voting public. Analyst after analyst has quoted the axiom that all Democratic nominees change their positions to appear more liberal while they're campaigning for their party's primary and then, once they have the delegate lead sewed up, change their positions again to be more "centrist;" that supposedly the Republicans do the same thing, tacking right in the primaries and tacking center-ward after the primaries.

Because obviously Barack Obama can't possibly mean what he says when he says he supports the warrantless wiretapping program that allows the National Security Agency to eavesdrop on any phone call, as long as what they at least say that they're trying to do is only pay attention to the calls that are between (actual or suspected) enemy agents and (actual or possible) enemy contacts overseas, he can't possibly really accept the argument, implicit in this bill, that if the NSA secretly tells a telecom company that the President approved this tap, the company should secretly and immediately comply, right? It's got to be just election-year posturing, right? Keith Olbermann and John Dean have both been going on all week about how they're just 100% sure that it must be a secretive conspiracy on Barack Obama's part to lull the Bush administration and the telcos into a false sense of security, then spring the trap on them with criminal, not civil, prosecutions next January. Right?

Wrong.

I think he actually means it.

And I'm a little bit disappointed, but not terribly surprised. And I'd rather he didn't, but I don't care enough to base my vote on it, not least of which because on this issue, there's no meaningful difference between him and John McCain. But that's not the point that I want to, that I feel that I need to, explain. Let me explain why I think he means it. (Again. I explained most of this, in part at least, when the warrantless wiretapping program first leaked to the public, I'm pretty sure.)

The fact of the matter is that going all the way back to the deployment of the telegraph, all the way back to the Civil War, in every war the US has ever fought, our spy services have spied on Americans in total violation of the 4th Amendment to the US Constitution. But rather than detail it war by war, let me point out to you the history of the NSA's original warrantless wiretapping program: Operation Ivy Bells, 1957 to 1975.

The National Security Agency as we now know it was founded by President Truman in 1947, to collect most of our WWII signals-intercept capabilities into a single agency and retool it from spying on our German and Japanese enemies on behalf of our Russian allies (and ourselves), to spying on our Russian (and Chinese, but mostly Russian) enemies on behalf of our German and Japanese allies (and ourselves). You can't entirely keep a secret that big, certainly not once a department gets big enough to get its own huge headquarters building, but for the first roughly 18 years of its life, the long-standing joke was that the acronym NSA stood for "No Such Agency" or "Never Say Anything." Rumors got out, but officially the very existence of the NSA was classified Top Secret. During the Cold War they mostly specialized in intercepting and decoding radio signals, but they did have one very, very ambitious phone-tapping program. It used customized Navy submarines to "tap" the trans-Pacific phone cables. Originally they only tapped a local underwater cable, but it expanded to tap all deep water telephone cables going into the Soviet Union. Yes, all calls from anyone, including any innocent civilians, who called anybody in Russia, including ones they had no 4th Amendment right to hear, were recorded, brought back, skimmed for useful intelligence, translated, and if any was found, it was put to use; then the tapes were erased and reused. The program only ended in 1975 when one of the NSA's own people sold the secret of the program to the KGB for cash. But even then, the American public didn't hear about it.

Why do we know anything at all about the NSA, officially, now? Because in 1971, President Nixon ordered the NSA to eavesdrop on all anti-Vietnam-War groups, too, also without a warrant, on the shallow excuse that some of them might secretly be controlled by Soviet spies. This so offended someone, and we're still not even sure who, that they blew the whistle, eventually leading to Congressional hearings in October, 1975: the famous Church Committee. It was in the Church Committee hearings that the government was grudgingly forced to admit that the NSA even existed, and that it had been used to spy on Nixon's political opponents. Even then, Ivy Bell never came up, not until long after the statute of limitations had run out. But no further attempts to set up any program even vaguely like it were set up until 1978 or later. Why 1978? Because having abused the privilege of spying on Americans for political reasons, the NSA was put under a figleaf of court oversight, and I do mean a figleaf, their own captive and pretty much entirely complaisant Foreign Intelligence Surveillance Court. At which point the NSA went back into the business of spying on Americans, in total secrecy, without ever being turned down once, despite never having to turn in anything resembling enough evidence for a real search warrant, for a bit more than a decade. And that whole time, there were people mounting legal challenges to the Foreign Intelligence Surveillance Act, arguing (quite correctly) that it was a blatant violation of the Fourth Amendment to the US Constitution. And they got nowhere. You know why they got nowhere? Because the American government, including the courts, are run by grownups. And their attitude was, "who cares?"

They allowed FISA and the FISC/NSA to go forward, spying on Americans, because they knew that the real safeguard on Americans' actual liberty wasn't the FISC. It was the teleco employees themselves who'd have to install and maintain the taps, or who would inevitably discover them in the course of their work. It was the NSA's own employees, its own culture, who were trusted because the one and only time any White House ever abused the NSA for political reasons, somebody blew the whistle. And when they did, Nixon didn't have the guts to even try to make up a plausible national security reason for why he'd tapped Democratic Party offices and anti-war activists. I remember my Dad, and other adults I knew at the time, disgustedly arguing that if Nixon'd had the guts to say, "Yeah, I did it. I had evidence that wasn't good enough to get a warrant or to make a public accusation, but too good to completely ignore, that there was a Soviet spy in there somewhere, and I had to find out if it was true. So I had spies break into that party's offices. It turned out it wasn't true, so I didn't tell anybody because that would have unfairly tarred them with a false accusation, and we didn't use the information we got improperly. Would you rather I had ignored rumors of Soviet spies inside a major political party?", then he might have successfully finished his second term.

But anyway, afterwards, as far as everybody in any kind of a position of authority in Washington was concerned, the Watergate impeachment hearings and the Church Commission hearings proved that the FISC was a pointless exercise; that the real precaution was the guaranteed certainty that so many people would know if the White House was abusing its spying capabilities, one of the people who knew would have a conscience attack. And that's what's so uncomfortable about the whole Terrorist Surveillance Program at AT&T and other telecos, the warrantless wiretaps that let the NSA skim the entire Internet backbone and all long-distance phone lines for evidence of al Qaeda plots: nobody, and I mean nobody, has come up with even a suggestion that anybody in the NSA used those taps for anything but legitimate purposes, or even a hint that any information that they weren't supposed to be looking for was passed to the White House, or even a single clue that any actual American's privacy or political rights were impaired in even the tiniest way ... but somebody blew the whistle anyway. And that's not actually supposed to happen. Implicit in the relationship between America's spy agencies and America's telecom companies that goes all the way back to the original American Telegraph system in the 1860s is an agreement that everybody would keep their mouths shut unless something went wrong, and that agreement was breached.

So if you think that no matter what he was told or how famously fair-minded a man he is, Barack Obama can't possibly be really okay with a bill that forgives every telco for participating in the Terrorist Surveillance Program if they claim that they at least thought that the President had ordered it? That he must only be claiming to be okay with it for political advantage, for fear of being called soft on terror, or to reassure swing voters, or to establish the appearance of some distance between himself and the left-wing blogosphere? I'm pretty sure that you're wrong.

(And an irrelevant aside: my Bush Countdown Clock from NationalNightmare.com reminds me that there are now only 200 days left in the Bush Administration. And for much of that time, Congress is going to be in recess. Rejoice that there's really not much harm that the man can do in that little time, with no more resources or authority than he has left.)