Nancy Soderberg was deputy national security advisor and an ambassador to the United Nations in the Clinton administration. Today, she has an Op-Ed in the Los Angeles Times defending the FISA bill and telecom amnesty. The entire Op-Ed is just a regurgitation of the same trite, vague talking points which the political elite are using to justify this bill, accompanied by the standard invocations of "National Security" which our Foreign Policy elite condescendingly toss around to justify whatever policy they're claiming is necessary to protect us. But it's the language that she uses -- and the brazeness of the lying (and that's what it is) to justify this bill -- that's notable here.

It's notable because the political establishment is not only about to pass a patently corrupt bill, but worse, are spouting -- on a very bipartisan basis -- completely deceitful claims to obscure what they're really doing. This is what Soderberg says is what happened:The Senate is dragging its feet because the compromise bill's opponents -- mostly Democrats -- want also to punish the telecommunications companies that answered President Bush's order for help with his illegal, warrantless wiretapping program. That is the wrong target.

In the aftermath of Sept. 11, the White House directed telecommunications carriers to cooperate with its efforts to bolster intelligence gathering and surveillance -- the administration's effort to do a better job of "connecting the dots" to prevent terrorist attacks. In its review of the effort, the Senate Intelligence Committee concluded that the administration's written requests and directives indicated that such assistance "had been authorized by the president" and that the "activities had been determined to be lawful."

We now know that they were not lawful. But the companies that followed those directives are not the ones to blame for that abuse of presidential power. I would really like to know where people like Soderberg get the idea that the U.S. President has the power to "order" private citizens to do anything, let alone to break the law, as even she admits happened here. I'm asking this literally: how did this warped and distinctly un-American mentality get implanted into our public discourse -- that the President can give "orders" to private citizens that must be complied with? Soderberg views the President as a monarch -- someone who can issue "orders" that must be obeyed, even when, as she acknowledges, the "orders" are illegal.

That just isn't how our country works and it never was. We don't have a King who can order people to break the law. I have no doubt that people like Nancy Soderberg are spending the July 4 weekend paying shallow homage to the Founding, all the while being completely ignorant of or indifferent to the principles they pretend to celebrate. Just compare her claim that telecoms were justified, even required, to comply with the President's "order" to break the law with Thomas Paine's view, set forth in his 1776 revolutionary pamphlet Common Sense concerning how our country was supposed to work:But where says some is the King of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve as monarchy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.Nancy Soderberg and the rest of our political establishment about to immunize telecoms for having broken the law simply don't believe in those principles. And they're saying so explicitly. To them, the President's order to break the law both should and must be obeyed. Where did they learn that?

So much of this comes from the constant fetishizing of the President as the Supreme Leader, "our" Commander-in-Chief, rather than -- as the Constitution explicitly states -- "commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." In the U.S., private actors don't have government "commanders" who can "order" or "direct" them to do anything. Even soldiers, for whom the President is actually the Commander-in-Chief, are prohibited from obeying unlawful orders. Yet here is Nancy Soderberg -- in tandem with the rest of the political establishment -- claiming that private telecoms were justified, even compelled, to obey unlawful "orders" from the President, and are therefore entitled to be immunized from consequences.

Beyond that, her mentality reveals a profound ignorance of privacy laws and the history of spying abuses in the this country. Soderberg repeats the standard Democratic excuse for immunizing telecoms -- that telecoms are "the wrong target" because "the government should be held responsible, not private industry," and thus, "the companies that followed those directives are not the ones to blame for that abuse of presidential power."

This is all based on the false claim that privacy laws such as FISA were meant to restrict Government conduct, not those of telecoms. The exact opposite is true. FISA and other laws which the telecoms broke -- not just after 9/11, but for many years -- were written specifically to restrain how telecoms cooperate with Government spying requests. As Cindy Cohn, lead counsel for Electronic Frontier Foundation, explained when I interviewed her last October:We brought the case only against AT&T because AT&T has an independent duty to you, its customers, to protect your privacy. This is a very old duty, and if you know the history of the FISA law, you'll know that it was adopted as a result of some very deep work done by the Church Committee in Congress, that revealed that Western Union and the telegraph companies were making a copy of all telegraphs going into and outside the U.S. and delivering them to the Government.

So this was one of the big outrages uncovered by the Church Committee -- in addition to the rampant surveillance of people like Martin Luther King.

As a result of this, Congress very wisely decided that it wasn't sufficient to simply prevent the Government from listening in on your calls - they had to create an independent duty for the telecom carries not to participate in illegal surveillance.

So they are strictly forbidden from handing over your communications and communications records to the Government without proper legal process.Contrary to what the Nancy Soderbergs of the world want people to believe, these laws enacted by the American people in order to prevent spying abuses weren't only directed at the Government but specifically at the telecom industry as well. The whole point was to compel telecoms by force of law to refuse illegal Government "orders" to allow spying on their customers. That's why Qwest and others refused to "comply", but the telecoms that were hungry for extremely lucrative government contracts agreed to break the law. They did it because, motivated by profit, they chose to, not because they were compelled. Breaking the law on purpose and then profiting from the lawbreaking is classic criminal behavior. The conduct which those laws were designed to make illegal -- and which they unambiguously outlawed -- is exactly what the telecoms did here.

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Nancy Soderberg shouldn't be singled out. She's just disseminating the settled-upon talking points of the Democratic establishment and media elite in justifying this bill -- the same basic ones that pervade the manipulative and at times misleading statement issued by Barack Obama on Friday. She's speaking from the same script. But Soderberg's formulation is particularly artless and she thus advances statements which are just inexcusably false, so flagrantly and knowingly false that they're just offensive to read. She writes:But what's most objectionable to some Democrats is a provision that provides telecommunications companies accused of past wrongdoing the right to have their cases reviewed in district court.As everyone acknowledges, this bill effectively compels the district courts to dismiss the lawsuits against telecoms without any examination of whether the law was broken. Yet, in praising this bill, she says the bill gives telecoms "the right to have their cases reviewed in district court" -- as though they're being denied that "right" now, and as though the bill restores that right. Is it even possible to describe telecom immunity more dishonestly, with more Orwellian deceit, than that?Clearly, the intelligence community cannot succeed in the war on terrorism -- cannot really connect the dots -- without help from the private sector. Congress must protect those companies so they can and will help, when it's necessary.Under the law -- both the current FISA and the new bill -- telecoms are legally required to comply with lawful requests from the Government. They don't have the option to "refuse to cooperate." What she's actually saying here is indescribably Orwellian -- that telecoms had the obligation to obey Bush's illegal orders to allow government spying, but they have the option to ignore legal warrants to do so. That's exactly backwards -- there is no danger that telecoms will "refuse to cooperate" because they are required to do so when the government requests are legal.Without such protection, phone and Internet companies, if they cooperated at all, would do so on a case-by-case basis, with their own lawyers exercising lawyer-like caution.What she snidely dismisses as "lawyer-like caution" exercised on "a case-by-case basis" is called "obeying the law." That's what we want people to do; that's the whole purpose of law.The bill passed by the House will prevent any repeat of that wrong, but it also lets those companies off the hook for past actions.The reason the President broke the law was because he claimed that he has the power under Article II to ignore Congressional statutes restricting eavesdropping. He still claims that power, and this law does nothing to address that. It does the opposite: by putting an end to the pending lawsuits against the telecoms, it ensures that this Article II theory of presidential omnipotence will continue undisturbed -- both for the current President and for the next ones. To assert that this law does anything meaningful to address the Bush/Addington/Yoo theory of presidential lawbreaking that gave rise to this scandal is simply false. It blocks the only avenue for adjudicating the central cause of presidential lawbreaking, thus ensuring its continuation.The compromise bill satisfies both sides: Under congressional oversight, it puts the responsibility for past surveillance squarely on the administration, where it belongs, and allows the courts to determine the legality of these actions.This is the most flagrantly dishonest claim she makes, which is really saying something. The bill does the exact opposite of what she claims. It does not "allow[] the courts to determine the legality of these actions." It bars the courts from doing so in the case of telecoms, while ensuring that the Bush administration remains protected from judicial review by all sorts of procedural obstacles such as "standing" and "state secrets" that Congress is choosing to do nothing to address.

The bill thus ensures that what Soderberg admits is lawbreaking by both the Government and telecoms will never be addressed or resolved by a court of law. It shields the lawbreakers from accountability in court. That's its whole purpose. She has to know that, and yet here she is, telling people that this bill is a just and good policy because it "allows the courts to determine the legality of these actions." Can anyone coherently deny that it's outright lying to claim that this bill "allows the courts to determine the legality of these actions" when it does the exact opposite?

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What all of this is really about -- the reason why political elites like Nancy Soderberg are so eager to defend it -- is because they really do believe that lawbreaking isn't wrong, that it doesn't deserve punishment, when engaged in by them rather than by commoners. People who defend telecom immunity or who say that it's not a big deal are, by logical necessity, adopting this view: "Our highest political officials and largest corporations shouldn't face consequences when they break our laws as long as they claim it was for our own good." That's the destructive premise that lies at the heart of this deeply corrupt measure, the reason it matters so much. Just like the pardon of Nixon, the protection of Iran-contra criminals, and the commutation of Lewis Libby's sentence, this bill is yet another step in cementing a two-tiered system of justice in America where our highest political officials and connected elite can break our laws with impunity.

Protecting government and corporate elite from flagrant lawbreaking is what our own political establishment always claimed was the hallmark of third-world, under-developed tyrannies. This 1998 essay by Thomas Carothers of the Carnegie Endowment for International Peace -- in the ultimate establishment organ, Foreign Affairs -- was entitled "The Rule of Law Revival," and argues optimistically that the "rule of law" has now become the centerpiece, the prime consensus, for most international relations and has been recognized as the linchpin for third-world countries developing into functioning democracies. It speaks for itself in terms of what the Nancy Soderbergs, Jay Rockefellers, Fred Hiatts, Dick Cheneys and all their establishment comrades are doing to our country by acting to cover-up the single most flagrant act of Bush lawbreaking and immunizing the key lawbreakers:LEGAL BEDROCK

THE RULE of law can be defined as a system in which the laws are public knowledge, are clear in meaning, and apply equally to everyone. They enshrine and uphold the political and civil liberties that have gained status as universal human rights over the last half-century. . . . Perhaps most important, the government is embedded in a comprehensive legal framework, its officials accept that the law will be applied to their own conduct, and the government seeks to be law-abiding. . . .

The primary obstacles to such reform [in the Third World] are not technical or financial, but political and human. Rule-of-law reform will succeed only if it gets at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and vested interests only under great pressure. . . .

Type three reforms aim at the deeper goal of increasing government's compliance with law. A key step is achieving genuine judicial independence. . . . But the most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision-making and accept the judiciary as an independent authority.Our Congress, with the political and media elite cheering, is about to violate every one of these principles. They are taking away from the judiciary the power to adjudicate allegations of lawbreaking. They are creating a two-tiered system of justice in which our most powerful corporations can break the law with impunity and government officials remain immune from consequences. And they are, in unity, spewing rank propaganda to the commoners -- who continue to be subjected to the harsh punishment for violations of the law and one of the world's most merciless justice systems -- in order to convince them that granting license to our political and corporate elites to break the law is necessary for their own Good and for their Safety.

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Following numerous requests from those who contributed to our campaign against those responsible for this FISA and telecom amnesty travesty, we are in the process of preparing a full-page ad -- highlighting how false are the claims being made to justify this bill and the reasons it is so corrupt -- to run this week in The Washington Post (assuming it is accepted) and other similar venues.

A Bush-41-appointed Federal District Judge yesterday became the third judge -- out of three who have ruled on the issue -- to reject the Bush administration's claim that Article II entitles the President to override or ignore the provisions of FISA. Yesterday's decision by Judge Vaughn Walker of the Northern District of California also guts the central claims for telecom immunity and gives the lie to the excuses coming from Congress as to why the new FISA bill is some sort of important "concession." More than anything else, this decision is but the most recent demonstration that, with this new FISA bill, our political establishment is doing what it now habitually does: namely, ensuring that the political and corporate elite who break our laws on purpose are immune from consequences.

Judge Walker's decision (.pdf) was issued in the case of Al-Haramain v. Bush. That lawsuit was brought against the Bush administration by an Oregon-based Muslim charity and two of its American lawyers, alleging that the Government violated FISA -- i.e., broke the law -- by eavesdropping on their telephone conversations without the warrants required by law. The warrantless eavesdropping occurred as part of Bush's NSA spying program, which entailed spying on Americans' international communications without warrants (the lawyers were in London when they spoke on the telephone to their client in Oregon). What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.

The Bush administration argued that the plaintiffs could not prove their case because, to do so, they would have to rely on documents and information that the President deemed to be "state secrets" (i.e., the Government's eavesdropping activities) and which are, therefore, unusable in court. That is the argument the court rejected -- holding instead that Congress, when it enacted FISA, established a procedure that allows even classified information to be considered by a court, and the President's Article II powers cannot override the FISA statute. As the Court pointed out, Congress' core purpose in enacting FISA in 1978 was to bar the President from exercising untrammeled, unchallenged power in the area of eavesdropping. Thus, presidential assertions of secrecy do not override the law.

There are several vital points to note from this decision that directly relate to Congress' plan next week to enact a new FISA statute, vest new warrantless eavesdropping powers in the President, and immunize lawbreaking telecoms:

(1) As indicated, Judge Walker became the third federal Judge to reject the Bush administration's legal excuse for breaking the law. Now that Judge Walker has joined Federal District Judge Anna Diggs Taylor in the Eastern District of Michigan and Sixth Circuit Court of Appeals Judge Ronald Gilman in so ruling, this means that every federal judge to rule specifically on the Bush administration's legal excuses for violating FISA has rejected those excuses (as even Bush-cheerleader Andy McCarthy admitted, the Supreme Court's 2006 decision in Hamdan also "sounds the death knell for the National Security Agency's Terrorist Surveillance Program (TSP)" by effectively rejecting the President's legal excuses for violating FISA).

Despite that unanimous line of defeats for the administration's lawbreaking excuses -- or, more accurately, because of it -- Congress is about to put an end to any real hope that there will be a meaningful, final adjudication on whether the Government broke the law. Despite yesterday's ruling, the plaintiffs in this case still face significant, possibly insurmountable, procedural hurdles regarding "standing" -- the same procedural hurdles that prevented the ACLU's case in the Sixth Circuit from proceeding.

For procedural reasons, the court yesterday ruled that plaintiffs -- in order to obtain a ruling as to whether the Bush administration broke the law -- must be able to show that they were subject to warrantless surveillance without using the accidentally produced transcripts, something that will be very difficult to do. Congress has refused to pass legislation to fix this Kafkaesque, Catch-22 trap -- whereby the President illegally spies in total secrecy, with no oversight, thus preventing anyone from being able to prove they were subjected to the illegal spying and thus preventing anyone from having "standing" to challenge the legality of the spying in court.

Thus, we have extremely strong indications from multiple courts that the President deliberately broke the law for years -- a law that provides that violations of its provisions are felonies punishable with 5 years in prison for each offense. And yet our political establishment, with Democrats at the helm, are about to ensure that there are never any consequences for that lawbreaking and no accountability whatsoever in a court of law.

A typical line in Barack Obama's stump speech throughout the primary season was that "the era of Scooter Libby justice . . . will finally be over." But this new FISA bill -- and the immunity it bequeaths -- is the very essence of "Lewis Libby justice": ensuring that our highest political officials and other well-connected elites can break our laws with total impunity. Courts keep ruling that the President and his allies have no excuses for having broken our laws, while our political establishment acts to ensure that they are protected from the consequences.

(2) Judge Walker is the same Judge who is presiding over all of the telecom lawsuits. He has ruled against telecoms in the past, most notably refusing to dismiss the lawsuits on this ground: "because the very action in question has previously been held unlawful, [telecoms] cannot seriously contend that a reasonable entity in its position could have believed that the alleged domestic dragnet was legal" [Decision at 68; emphasis added].

This history of the telecoms -- faring no better in court than the President has -- gives the lie to Fred Hiatt's deeply (and typically) dishonest Washington Post Editorial today -- by way of praising Obama's FISA stance -- that telecom immunity is a good idea because "The likelihood of prevailing -- or even getting very far -- with such lawsuits is low." The exact opposite is true: it's precisely because the telecoms know they are in severe danger of losing in court -- because they broke multiple laws -- that they and the White House are so desperate for amnesty.

The excuses offered by our political establishment for this rampant lawbreaking have been systematically rejected by the institution the Founders intended to adjudicate these legal issues -- our courts -- and it's for exactly that reason that our establishment is now conspiring to take away from the courts the responsibility they were assigned to hold lawbreakers accountable.

(3) The central excuse from leading Democratic advocates of telecom immunity -- that the poor telecoms are unfairly hamstrung in these lawsuits by the President's assertion of the "State Secrets" privilege from using the evidence that shows they're innocent -- was gutted by yesterday's ruling. That excuse was false all along, since FISA explicitly provides that any party can submit even classified evidence to the court. As I noted back in January in response to Jay Rockefeller's misleading claim that immunity was necessary to save the telecoms from the unfair predicament of being barred by the President from submitting exculpatory evidence in these lawsuits:Rockefeller added: "If people want to be mad, don't be mad at the telecommunications companies, who are restrained from saying anything at all under the State Secrets Act. And they really are. They can't say whether they were involved, they can't go to court, they can't do anything. They're just helpless. And the president was just having his way."

Rockefeller's claim that telecoms can't submit exculpatory evidence to the court is flat-out false, an absolute lie. There is no other accurate way to describe his statement.

Under FISA (50 USC 1806(f)), telecoms are explicitly permitted to present any evidence in support of their defenses in secret (in camera, ex parte) to the judge and let the judge decide the case based on it. That section of long-standing law could not be clearer, and leaves no doubt that Rockefeller is simply lying when he says that telecoms are unable to submit secret evidence to the court to defend themselves.That's exactly what Judge Walker ruled yesterday:


[Decision at 18]. The excuse that telecoms were prevented from submitting their evidence to the court to prove they complied with the law was always a sham. FISA explicitly provided a procedure for doing exactly that. And now Judge Walker's ruling makes that fact crystal clear.

(4) This ruling also reveals what a ruse is the Democratic leadership's primary defense of their new FISA bill -- that because they stood firm and negotiated a clause providing that FISA is the "exclusive means" for eavesdropping, we should all be grateful for this new law. That claim was painfully insulting from the start, since the current FISA law -- the one that Bush and the telecoms have continuously broken with no consequences -- already provides exactly that, and Judge Walker ruled yesterday that this provision is more than sufficient to prohibit the President from acting outside of its scope:


[Decision at 23, 25]. The next time you hear Steny Hoyer, Obama surrogates and their various apologists tell you how important the new FISA bill is because it contains an "exclusivity" provision and thus ensures that the FISA court is brought back into Government eavesdropping, just go read what Judge Walker said about the current FISA framework to realize how misleading that claim is. They're presenting as a "gift" something you already have, and telling you that you should give up critical protections in exchange for receiving something that you already have -- namely, a requirement that the President comply with eavesdropping laws. What they're doing is tantamount to someone who steals your wallet, takes all the money out, gives the empty wallet back to you, and then tells you that you should be grateful to them because you have your wallet.

(5) Here is the most important point of all. The Court reviewed the basic history of FISA: that the Church Committee in the mid-1970s had uncovered decades of spying abuses by our Government that were made possible -- made inevitable -- because the Government could spy without warrant requirements. The Court quoted the Church Committee's findings:

[Decision at 10-11]. That was the process that led to the enactment of FISA 30 years ago. That is the bipartisan consensus that led both Republican and Democratic Presidents ever since to comply with it without complaint -- until the current President broke the law in secret. And now, that's the framework which the Congress is about to demolish, while protecting the very political officials and telecommunications companies which that law was designed to constrain.

The very people who are doing this and justifying it are the same ones who spent the last seven years either meekly submitting to or actively enabling the whole radical litany of Bush war-making and law-breaking. Despite that, these people -- the same ones who cheered on the most unpopular President and one of the most disastrous, hated wars and the whole range of radical, un-American measures of the last seven years -- are insisting that they are the mainstream "centrists," and that that those who merely favor the preservation of this long-standing FISA framework to protect our core constitutional liberties are the "radicals" -- Far Left radicals who believe in such extremist and discredited doctrines as the Fourth Amendment, judicial warrants, and the rule of law. Those are the rotted premises that have produced the political climate of the last seven years and which have led us to the Senate vote next week.

In today's New York Times, James Risen -- who won the Pulitzer Prize for exposing Bush's illegal NSA spying program -- has an article reporting on Obama supporters who are criticizing Obama for his FISA reversal and who are attempting to defeat the bill which Obama supports. The article quotes Jane Hamsher, Markos Moulitsas and myself and features the very innovative effort by Obama supporters to use his campaign's social networking tools to urge Obama to oppose the FISA bill (more on that campaign here). For his article, Risen spoke with Obama adviser Greg Craig, a partner at the Washington law firm Williams & Connolly, and this is what Craig told Risen: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."Craig's statement is flat-out false. FISA -- enacted in 1978 and amended many times to accommodate modern communications technology -- has no expiration date. The Protect America Act, which Congress enacted last August to legalize warrantless eavesdropping on Americas, had a 6-month sunset provision and thus already expired back in February, restoring FISA as the governing law. Thus, if Congress does nothing now, FISA will continue indefinitely to govern the Government's power to spy on the communications of Americans. It doesn't expire. What Craig said in defense of Obama is just wrong.

I emailed Craig this morning about his comments (here) and when I received no reply, I called him, left a message, and he called me this afternoon. After I read him his quote, explained that FISA won't expire, and pointed out that his comment in the NYT therefore made no sense, Craig paused for awhile and then said that he meant that the "warrants under FISA would expire in August," and Obama supported the FISA "compromise" to prevent that from happening. When I asked Craig if he was referring to the surveillance orders authorized by the Protect America Act that allow the Government to spy with no individual warrants (which have a one-year duration and do expire in August), Craig said that this is what he meant, and that Obama wanted to avoid having those surveillance orders expire.

While that last version at least generally comports with reality, it makes no sense whatsoever as an explanation for Obama's FISA position. Back in August, when he was seeking the Democratic nomination, Obama voted against the Protect America Act. Therefore, had Obama had his way, there never would have been any PAA in the first place, and therefore, there never would have been any PAA orders possible. Having voted against the PAA last August, how can Obama now claim that he considers it important that the PAA orders not expire? How can he be eager to avoid the expiration of surveillance orders which he opposed authorizing in the first place?

I asked Craig that question several times and received completely incoherent replies, after which he started insisting that he already answered me and had nothing else to add (he then changed the subject to talk about the "improvements" the current bill achieves over the Rockefeller Senate bill). The fact is that there is no answer. In the past, Obama has opposed the type of warrantless eavesdropping which those PAA orders authorize. He's repeatedly said that the FISA court works and there's no need to authorize eavesdropping without individual warrants. None of that can be reconciled with his current claim that he supports this FISA "compromise" because National Security requires that those PAA orders not expire and that there be massive changes to FISA. It's just as simple as that.

It's bad enough that Obama is supporting a new warrantless eavesdropping scheme. They should just candidly admit that he changed his position rather than feeding incoherent and insultingly false rationalizations to the public -- whereby they throw around the terms "National Security" and "balance" enough times and hope that nobody notices or cares that what they're saying makes no sense. One of the strengths of the Obama campaign has been a willingness to have adult discussions about complex political issues, assume a fair amount of rationality and intelligence on the part of the voting public, and avoid manipulative, obfuscating sloganeering like this. It's just adding insult to injury to resort to nonsensical justifications of the type Craig put into the New York Times today.

Just to get a flavor for how fundamental a reversal is Obama's FISA position, here is what Obama said back in February when accepting Chris Dodd's endorsement:We know it's time to time to restore our Constitution and the rule of law. This is an issue that was at the heart of Senator Dodd's candidacy, and I share his passion for restoring the balance between the security we demand and the civil liberties that we cherish.

The American people must be able to trust that their president values principle over politics, and justice over unchecked power. I've been proud to stand with Senator Dodd in his fight against retroactive immunity for the telecommunications industry. Secrecy and special interests must not trump accountability. We must show our citizens -- and set an example to the world -- that laws cannot be ignored when it is inconvenient. Because in America –- no one is above the law.Here is what he said back in January:Ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand.

The FISA court works. The separation of power works. We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight, and do not undermine the very laws and freedom that we are fighting to defend.

No one should get a free pass to violate the basic civil liberties of the American people -- not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed. . . .

A grassroots movement of Americans has pushed this issue to the forefront. You have come together across this country. You have called upon our leaders to adhere to the Constitution. You have sent a message to the halls of power that the American people will not permit the abuse of power -- and demanded that we reclaim our core values by restoring the rule of law.

It's time for Washington to hear your voices, and to act. I share your commitment to this cause, and will stand with you in the fights to come.And obviously, his vow last October to "support a filibuster of any bill that includes retroactive immunity for telecommunications companies" can't be reconciled with his vow to "support" such a bill now.

The issue is not -- as one extremely confused Obama-cheering blogger put it -- that Obama has done "something contrary to what conventional wisdom as dictated by a small coterie of prominent bloggers agrees with," nor is it -- as an equally confused, Obama-cheering Ed Kilgore put it -- that Obama is "stray[ing] from Democratic Party orthodoxy or from strict down-the-line partisanship" by "expressing heretical thoughts on FISA" (incidentally, it's amazing how the rule of law, the Fourth Amendment and accountability for Bush lawbreaking have now -- in service of defending Obama -- all been instantaneously reduced to nothing more than quirky, self-absorbed, petty blogger "dictates," and Obama's disregarding of those core political values is a bold demonstration that he won't be held hostage to anyone's narrow partisan demands).

The issue is that Obama has repeatedly, over the course of the last year, made emphatic commitments and clear statements about his own core political values that are completely irreconcilable with his support for the FISA bill. It's possible to recognize that someone is just a "politician" and still trust that they're essentially telling you the truth about what they think and what they'll do. One hard-core Obama supporter explains that here.

As I said, it's bad enough that this is being done. Eventually, the sting of what Obama and Democrats generally have done will diminish somewhat for many people. But for those who have sat by watching the Bush administration and its followers exploit complexities over spying issues in order to issue one false claim after the next to justify Bush's lawbreaking, having the Obama campaign issue factually false and/or incoherent explanations to justify Obama's conduct only makes matters worse, not better.

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Blue America has created -- and today unveils -- a superb new tool for contacting key Senators to urge them to vote against the FISA bill and/or to vote for pending amendments to improve the bill (if any of those amendments pass, a key benefit will be that the bill then must return to the House or be reconciled, rather than going straight to the White House for signing):This first tool allows you to directly contact Senators to tell them to stand up for the rule of law and vote in favor of the Dodd-Feingold-Leahy amendment. (That's S.A.5064 to H.R. 6304 which will come up for a vote on July 8th, 2008.) Not only will this tool help you phone your Senators -- including connecting your call -- but it also gives us the ability to track positions on FISA given your input on what you ascertain during your conversations.You can read about how to use it here.

On two related notes, we will describe details of the next stages of our ad campaign and the imminent "money bomb" campaign very shortly. Those wishing to help fund that campaign can do so here.

Finally, Darcy Burner -- the Democratic challenger to GOP Rep. Dave Reichert in Washington State -- experienced a tragic event yesterday where her home was completely destroyed by a fire, causing the loss of most of her family's possessions and their family cat. Darcy is one of the most impressive Democratic candidates anywhere in the country -- and has been as outspoken on warrantless eavesdropping and the NSA scandal as anyone, despite being in a very close race in a split GOP/Democratic district. Those wanting to help her and the campaign in this difficult time can find out how to do so here and here.

(updated below)

As our political establishment takes new and disturbing steps towards a more confrontational approach with Iran, the effort to stomp out any discussion of the role Israel plays in that policy has once again intensified. Last week, Joe Klein -- basically out of the blue -- observed that while many advocates of an attack on Iraq (which once included Klein) were motivated by "neocolonial" fantasies or ensuring access to Iraq's oil, many other war proponents were motivated by their allegiance to Israel:The fact that a great many Jewish neoconservatives -- people like Joe Lieberman and the crowd over at Commentary -- plumped for this war, and now for an even more foolish assault on Iran, raised the question of divided loyalties: using U.S. military power, U.S. lives and money, to make the world safe for Israel.Since then, Klein has escalated the provocative rhetoric, writing several days ago: You want evidence of divided loyalties? How about the "benign domino theory" that so many Jewish neoconservatives talked to me about -- off the record, of course -- in the runup to the Iraq war, the idea that Israel's security could be won by taking out Saddam, which would set off a cascade of disaster for Israel's enemies in the region? As my grandmother would say, feh! Do you actually deny that the casus belli that dare not speak its name wasn't, as I wrote in February 2003, a desire to make the world safe for Israel? Why the rush now to bomb Iran, a country that poses some threat to Israel but none -- for the moment -- to the United States . . . unless we go ahead, attack it, and the mullahs unleash Hezbollah terrorists against us? Do you really believe the mullahs would stage a nuclear attack on Israel, destroying the third most holy site in Islam and killing untold numbers of Muslims? I am not ruling out the use of force against Iran -- it may come to that -- but you folks seem to embrace it gleefully.Then, after Joe Lieberman appeared on Face the Nation last weekend to (as usual) agitate for war with Iran, Klein not-so-cryptically asked: "Again, I wonder why Lieberman is so fixated on Iran."

Needless to say, the assault on Klein has been as vicious, furious and dishonest as it was predictable. As Mickey Kaus notes:Max Boot, Pete Wehner, Jennifer Rubin, Paul Mirengoff and Abraham Foxman of the Anti-Defamation League all wrote confidently outraged responses to Klein's raising of the "divided loyalties" possibility -- and, indeed, it's not the sort of assertion that has typically gone unpunished in the past. When Klein stubbornly failed to back down in a second post, Wehner somewhat smugly anticipated his near-certain demise: It's like watching a movie that you now know is going to end very badly, and very sadly.Regarding the ADL's condemnation of Klein, Kaus wrote:Note to [ADL's Abraham] Foxman: I worked at The New Republic! The magazine supported the war. I consider it's [sic] editor, Martin Peretz, to be a friend and mentor. But if you think Marty's views are uninfluenced by his affinity for Israel -- and that the views of many of the eminent neocons who visited our offices were uninfluenced by "matters of faith" and/or religious identity -- then you don't know Marty and you don't know The New Republic. In fact, you're more than a bit clueless. But you are not clueless.This attempt to "punish" people who note the role which allegiance to Israel plays in many advocates' desire for a militaristic American Middle East policy has always been an attempt to punish people for expressing a self-evidently true and important point. But that's only the second worst aspect of it. The worst aspect of it is that those who seek to place the "divided loyalty" point off limits are often the ones who most aggressively wield that same claim -- only they do so in service of their right-wing agenda. They seek to create a climate where "dual loyalty" arguments can be exploited by them for political gain, but cannot be spoken of by their political opponents upon pain of being subjected to exploitative, ugly accusations of anti-semitism and other crimes.

As I've documented previously, the very same right-wing advocates who scream "anti-semitism" at anyone, such as Klein, who raises the issue of devotion to Israel themselves constantly argue that American Jews do -- and should -- cast their votes in American elections based upon what is best for Israel. They nakedly trot out the "dual loyalty" argument in order to manipulate American Jews to vote Republican in U.S. elections (e.g.: "the GOP supports Israel and Obama doesn't; therefore, American Jews shouldn't vote for Obama"), while screaming "anti-semitism" the minute the premise is used by their political opponents. The Weekly Standard ran articles openly arguing that American Jews should vote Republican because the GOP is better for Israel, and Joe Lieberman runs around South Florida telling Jewish voters that they should vote for McCain because Obama isn't good for Israel.

The most recent blatant example of nakedly exploiting "dual loyalty" and "anti-Semitism" claims comes from Commentary's Jennifer Rubin. Rubin was one of those most viciously attacking Klein, accusing him last week of spouting what she called "the anti-Semitic argument of 'divided loyalties.'" Yet today -- barely a week later -- Rubin has a long Op-Ed in The Jerusalem Post which is probably the most unabashed expression of this "dual loyalty" argument that I've seen in quite some time.

Her column is devoted to arguing that many American Jews -- despite their commitment to political liberalism -- are (justifiably) reluctant to vote for Obama because "some Jews are incapable of deluding themselves that Obama would be the most resolute candidate in defending Israel." What is that if not an argument that American Jewish voters cast their votes in American elections -- and should do so -- based on what is best for Israel, i.e. for he who is "the most resolute candidate in defending Israel"?

In fact, Rubin's entire column is devoted to the explicit claim that Obama is insufficiently devoted to Israel's interests and, therefore, many American Jews are rightly skeptical of his fitness to be the American President:The Obama defenders are irked that not all Jews accept at face value Obama's expressions of devotion to Israel and commitment to her security. . . . Many Jewish Obama doubters are convinced that Israel faces a true existential threat unlike any in 35 years. . . . The Obama skeptics do not for a moment believe that Obama, in the face of domestic and international pressure similar to what Nixon faced, would rise to the occasion at a critical moment in Israel's history and "tell them to send everything that can fly" . . . .

AND IF any further proof were needed, Obama's actions with regard to the Kyl-Lieberman Amendment, the measure to classify the Iranian National Guard as a terrorist organization, should settle the question of Obama's intestinal fortitude when it comes to Israel. . . . Once his nomination was secured, Obama told those assembled at the AIPAC convention that he supported classification of the Iranian National Guard as a terrorist organization, a move he well understood was important to Israel's security and to AIPAC's members. Yet under just a smidgen of political pressure during the primary race, he had not been able to muster the will to support a modest measure which inured to Israel's benefit.

Indeed the temptation to believe in Obama's bland promises of support for Israel is a tempting one for liberal Jews. If they can convince themselves that he will be "fine on Israel," no conflict arises between their liberal impulses and their concern for Israel. The urge to believe is a powerful thing, especially when the alternative is an intellectual or moral quandary. . . .

BUT SOME Jews are incapable of deluding themselves that Obama would be the most resolute candidate in defending Israel. . . . And that is why these obstinate Obama skeptics, some even after a lifetime of Democratic voting, will not pull the lever for him. For them some things rank higher than even the top items on the liberal political agenda. The risk is, in their minds, too great that when Israel needs help the most, Obama will buckle and Israel will be crushed.It's just not possible to find a more explicit accusation of "dual loyalty" than Rubin repeatedly makes in her column. She just claims over and over that American Jewish voters are guided in their political choices by what is best for Israel -- exactly what she called an "anti-semitic argument" when made by Klein -- and she expressly insists that the American President be devoted to promoting Israeli interests, and that this is what American Jewish voters care about. That's the "dual loyalty" argument in its purest form.

But because this claim is put in service of advancing a right-wing agenda -- namely, an attack on Obama and support for a hard-line policy towards Iran -- it's deemed perfectly acceptable. And therein lies the most important point.

"Anti-semitism" accusations have been cynically exploited for so long by right-wing advocates as a bludgeon to silence debates over Middle East policy and for cheap political gain that the accusation has become trivialized to the point of irrelevance. Most ironically of all, the ADL -- whose ostensible central mission is to battle the trivialization of anti-Semitism and Nazism -- has played a leading role in this degradation, constantly exploiting its once-credible imprimatur in highly politicized ways which have nothing to do with real anti-semitism (such as Klein's perfectly legitimate commentary) and everything to do with promoting a hard-line policy in the Middle East and against Iran which is now one of the ADL's top priorities.

Smearing people as anti-Semites for cheap political gain is repellent in its own right and merits a response. But this tactic is particularly dangerous now, as the pressure is obviously being ratcheted up in numerous circles to pursue a far more bellicose policy towards Iran. Responding to the types of disgusting smears that are in Rubin's column and many other places, Obama not only appeared before AIPAC last month and vowed that "the danger from Iran is grave, it is real, and my goal will be to eliminate this threat"; that Iran's "Quds force has rightly been labeled a terrorist organization"; and "I will do everything in my power to prevent Iran from obtaining a nuclear weapon," but also, when asked last week by a Fox News host to play a "word association game" whereby he should say the first word that comes into his mind, Obama -- when the word was "Iran" -- responded as follows: "threat."

Whether Iran is really a threat to the U.S. (as opposed to Israel) is an absolutely critical matter to examine. It's just not tolerable to allow polemicists from Commentary and Weekly Standard to run around using the "dual loyalty" argument and "anti-semitism" smear to try to manipulate American Jews into voting for McCain and supporting hard-line policies toward Iran, while simultaneously screaming "anti-Semite" at those who argue that an attack on Iran would serve (and is motivated by) Israeli interests, not America's interests. That is a perfectly legitimate issue -- a central issue -- to be freely discussed.

Like everyone else, I don't know whether there is really any serious intent in the Bush administration to initiate some sort of attack on Iran (many very credible analysts highly doubt it will happen). But the risk is substantial enough -- and the situation is dangerous enough -- that free and open debate about that topic is critical. A prerequisite to such debate is preventing war-hungry, right-wing advocates from employing duplicitous and manipulative claims of "anti-semitism" and "dual loyalty" to stifle such discussions and intimidate opponents of a war-seeking approach to Iran.

UPDATE: In Salon today, Gregory Levey has an excellent article examining the role Israel is playing in the presidential election and the Joe-Lieberman-led effort to smear Obama as "anti-Israel" among Jewish voters. Levey correctly points out that "the vast majority of American Jews don't cast their votes based on considerations for Israel" -- a fact confirmed by a recent poll from the nonpartisan Israel Project -- but some extremely ugly tactics are being hauled out by the Right directed at those who do.

Keith Olbermann delivered a "Special Comment" last night on Obama's support for the FISA bill and, to his credit, attempted to address many of the criticisms that had been voiced regarding his prior comments. He seemed to abandon the idea that Obama harbors a Secret Plan to prosecute telecoms and instead urged him to adopt and then announce such a plan. Olbermann also assailed "the idea of handing a get-out-of-jail-free card to corporations who had approached definitional fascism by breaking the law in concert with the Bush Administration," and pointed out -- correctly -- that Obama will be attacked by the GOP as Soft on Terrorism no matter what he does. In general, Olbermann's commentary about Obama's FISA position was much more critical, in both senses of the word.

Still, there are numerous, glaring flaws with the fantasy that Obama will criminally prosecute telecoms, which I've already described in detail and will only summarize here. That the FISA bill only immunizes telecoms from civil but not criminal liability isn't some mystical discovery generated by John Dean's Talmudic examination of the fine print, but rather, is something that was crystal clear and known to everyone for a long time. Indeed, from the start, the Bush administration only proposed, and telecoms only sought, immunity from civil -- not criminal -- liability. That's because criminal prosecution would be extremely difficult, if not impossible, and beyond that, Bush could and likely will simply pardon telecoms from prosecution before he leaves office (nobody who has watched the last seven years would believe that Bush would be deterred because pardons are deemed by courts to be technical admissions of some level of guilt, and those asserting that pardons can't be issued until there are charges brought simply don't know what they're talking about).

More importantly, the FISA bill is dangerous and destructive for reasons having nothing to do with the telecom immunity provisions (i.e., the warrantless eavesdropping powers it vests in the President). Even if Obama did follow Olbermann's plan -- and is there anyone, anywhere, who believes there's any chance he will? -- it still wouldn't remotely justify Obama's support for this heinous bill.

Those points aren't worth re-hashing but an underlying point is worth emphasizing. Debates and disagreements among Obama supporters over the direction of his campaign -- even vehement disagreements -- aren't "slapdowns" or "feuds" or "pissing matches" or "circular firing squads" or counter-productive "distractions." As Olbermann's mildly responsive reaction to the criticisms that were made demonstrates, such disagreements are actually quite vital.

The choices Obama makes about how he campaigns and the positions he takes are extremely consequential in how political issues in this country are perceived. In the last two weeks alone, Obama has done the following:

*intervened in a Democratic Congressional primary to support one of the worst Bush-enabling Blue Dogs over a credible, progressive challenger;

* announced his support for Bush's FISA bill, reversing himself completely on this issue;

* sided with the Scalia/Thomas faction in two highly charged Supreme Court decisions;

* repudiated Wesley Clark and embraced the patently false media narrative that Clark had "dishonored McCain's service" (and for the best commentary I've seen, by far, on the Clark matter, see this appropriately indignant piece by Iraq veteran Brandon Friedman);

* condemned MoveOn.org for its newspaper advertisement criticizing Gen. Petraeus;

* defended his own patriotism by impugning the patriotism of others, specifically those in what he described as the "the so-called counter-culture of the Sixties" for "attacking the symbols, and in extreme cases, the very idea, of America itself" and -- echoing Jeanne Kirkpatrick's 1984 RNC speech -- "blaming America for all that was wrong with the world";

* unveiled plans "to expand President Bush's program steering federal social service dollars to religious groups and -- in a move sure to cause controversy . . . letting religious charities that receive federal funding consider religion in employment decisions," a move that could "invite a storm of protest from those who view such faith requirements as discrimination" -- something not even the Bush faith programs allowed.

That's quite a two weeks. One of the primary reasons that blogs emerged over the last seven years was as a reaction to, an attempt to battle against, exactly this narrative which the media propagated and Democratic institutions embraced -- that it is the duty of every Democrat to repudiate and attack their own base; that the truly pernicious elements are on the "Far Left", whose values must be rejected, while the Far Right is entitled to profound respect and accommodation; that "Strength" in National Security is determined by agreement with GOP policies, which is where "the Center" is found; that Seriousness is demonstrated by contempt for the liberal masses; that every Democrat must apologize for any statement over which Republicans feign offense.

Plenty of Beltway institutions already existed for the purpose of cheering on any and all Democrats no matter what they do. If that's all that blogs are supposed to do, then there is no need for them. From the beginning, blogs have been devoted to opposing Democratic complicity and capitulation -- to protesting the lack of Democratic responsiveness to their supporters -- every bit as much as opposing GOP corruption and media malfeasance. That role is at least as important as the others.

A presidential election is a unique time when Americans are engaged in a discussion over our collective political values (at least more engaged than any other time). Why would anyone watch the Obama campaign use this opportunity to perpetuate and reinforce this narrative, and watch Obama embrace polices that are the precise antithesis of the values he espoused in the past, and not criticize or object to that? Criticisms of that sort aren't unhealthy or counter-productive. They're the opposite. Of course one ought to object if a political candidate -- even Barack Obama -- is advocating policies that trample on one's core political values or promulgating toxic narratives. That's particularly true since his doing so isn't necessary to win; it's actually more likely to have the opposite effect.

There is no question, at least to me, that having Obama beat McCain is vitally important. But so, too, is the way that victory is achieved and what Obama advocates and espouses along the way. Feeding distortions against someone like Wesley Clark in order to please Joe Klein and his fact-free media friends, or legalizing warrantless eavesdropping and protecting joint Bush/telecom lawbreaking, or basing his campaign on demonizing MoveOn.org and 1960s anti-war hippies, is quite harmful in many long-lasting ways. Electing Barack Obama is a very important political priority but it isn't the only one there is, and his election is less likely, not more likely, the more homage he pays to these these tired, status-quo-perpetuating Beltway pieties.

* * * *

Ari Melber writes here about the rapidly growing group of Obama supporters organizing to urge him to vote against the FISA bill. Details on how to join that effort are here.

Republican Nancy Johnson of Connecticut was first elected to Congress in 1982, and proceeded to win re-election 11 consecutive times, often quite easily. In 2004, she defeated her Democratic challenger by 22 points. The district is historically Republican, and split its vote 49-49 for Bush and Kerry in the 2004 presidential election.

In 2006, Rep. Johnson was challenged by a 31-year-old Democrat, Chris Murphy, who ran on a platform of, among other things, ending the Iraq War, opposing Bush policies on eavesdropping and torture, and rejecting what he called the "false choice between war and civil liberties." Johnson outspent her Democratic challenger by a couple million dollars, and based her campaign on fear-mongering ads focusing on Murphy's opposition to warrantless eavesdropping, such as this one:



The result? Johnson was crushed: Rep. Nancy Johnson, a 12-term Republican who ran a tough-on-terror campaign and touted her co-authorship of the Medicare prescription drug legislation, lost her re-election bid Tuesday to anti-war Democrat Chris Murphy.

Murphy had 56 percent to Johnson's 44 percent with 12 percent of the precincts voting. Johnson was the longest serving representative in Congress in state history.Despite continuing to represent a tough, split district, Rep. Murphy -- as he runs for re-election for the first time -- recently voted against passage of the FISA/telecom amnesty bill, obviously unafraid that such Terrorism fear-mongering works any longer.

That pattern has repeated itself over and over. In the 2006 midterm election, Karl Rove repeatedly made clear that the GOP strategy rested on making two National Security issues front and center in the midterm campaign: Democrats' opposition to warrantless eavesdropping and their opposition to "enhanced interrogation techniques" against Terrorists. Not only did the Democrats swat away those tactics, taking away control of both houses of Congress in 2006, but more unusually, not a single Democratic incumbent in either the House or Senate -- not one -- lost an election.

With Rove's National Security, Terrorist-fear-mongering campaign, huge numbers of GOP incumbents were removed from office and replaced with Democratic newcomers. Voters were simply impervious to claims that Democrats should be denied power because their opposition to eavesdropping and torture made them Soft on Terror. Earlier this year, Bill Foster made opposition to the Iraq War a centerpiece of his campaign -- and emphatically opposed both warrantless eavesdropping and telecom immunity -- and then won a special election to replace Denny Hastert in his bright red Illinois district.

As the 2008 election approaches, the Democrats' position has strengthened further still. In fact, in attempting to determine the best targets for the $325,000 we have raised so far to target Bush-enabling Democrats in Congress, the most difficult obstacle by far has been to find even a single Democratic incumbent who is vulnerable. Not only does it appear that they all are likely to be re-elected, it's actually difficult to identify ones who have any real chance of losing. That's how weakened the GOP brand is and how vehemently the country has rejected their ideology and politics -- in every realm, including national security.

* * * * *

So what, then, is the basis for the almost-unanimously held Beltway conventional view that Democrats generally, and Barack Obama particularly, will be politically endangered unless they adopt the Bush/Cheney approach to Terrorism and National Security, which -- for some reason -- is called "moving to the Center"? There doesn't appear to be any basis for that view. It's just an unexamined relic from past times, the immovable, uncritical assumption of Beltway strategists and pundits who can't accept that it isn't 1972 anymore -- or even 2002.

Beyond its obsolescence, this "move-to-the-center" cliché ignores the extraordinary political climate prevailing in this country, in which more than 8 out of 10 Americans believe the Government is fundamentally on the wrong track and the current President is one of the most unpopular in American history, if not the most unpopular. The very idea that Bush/Cheney policies are the "center," or that one must move towards their approach in order to succeed, ignores the extreme shifts in public opinion generally regarding how our country has been governed over the last seven years.

One could argue that national security plays a larger role in presidential elections than in Congressional races, and that very well may be. But was John Kerry's narrow 2004 loss to George Bush due to the perception that Kerry -- who ran as fast as he could towards the mythical Center -- was Soft on Terrorism? Or was it due to the understandable belief that his rush to the Center meant that he stood for nothing, that he was afraid of his own views -- the real hallmark, the very definition, of weakness?

By the time of the 2004 election, huge numbers of Americans already turned against Bush's position on the War and ceased trusting him even in the realm of National Security. Thus, the defining claim of Bush's 2004 acceptance speech at the GOP Convention -- the central distinction he drew between himself and Kerry -- was not that his National Security views were right, but rather, was this:This election will also determine how America responds to the continuing danger of terrorism -- and you know where I stand. . . . In the last four years, you and I have come to know each other. Even when we don't agree, at least you know what I believe and where I stand.Bush's ability to project "Strength" came not from advocacy of specific policies, but from his claim to stand by his beliefs even when they were politically unpopular.

For that reason, isn't the perception that Obama is abandoning his own core beliefs -- or, worse, that he has none -- a much greater political danger than a failure to move to the so-called "Center" by suddenly adopting Bush/Cheney Terrorism policies? As a result of Obama's reversal on FISA, his very noticeable change in approach regarding Israel, his conspicuous embrace of the Scalia/Thomas view in recent Supreme Court cases, and a general shift in tone, a very strong media narrative is arising that Obama is abandoning his core beliefs for political gain. That narrative -- that he's afraid to stand by his own beliefs -- appears far more likely to result in a perception that Obama is "Weak" than a refusal to embrace Bush/Cheney national security positions.

What's most amazing about the unexamined premise that Democrats must "move to the Center" (i.e., adopt GOP views) is that this is the same advice Democrats have been following over and over and which keeps leading to their abject failure. It's the advice Kerry followed in 2004. It's why Democrats rejected Howard Dean and chose John Kerry instead.

And in 2002, huge numbers of Congressional Democrats voted to authorize the attack on Iraq based on this same premise that doing so would enable them to avoid looking Weak on National Security. The GOP then based its whole 2002 campaign on attacking Democrats as Weak on National Security and the Democrats were crushed -- because, having accepted rather than debated the GOP premises, there was no way to challenge GOP National Security arguments. What makes Democrats look weak is their patent fear of standing by their own views. A Washington Post article last week on Obama's move to the center included this insight:"American voters tend to reward politicians who take clear stands," said David Sirota, a former Democratic aide on Capitol Hill and author of the new populist-themed book "The Uprising." "When Obama takes these mushy positions, it could speak to a character issue. Voters that don't pay a lot of attention look at one thing: 'Does the guy believe in something?' They may be saying the guy is afraid of his own shadow."The central problem is that if Democrats embrace the GOP framework of National Security -- that "Strength" means what the GOP says it means -- then that framework gets enforced and perpetuated, and it's a framework within which Democrats can't possibly win, because Republicans will always "out-Strength" Democrats within that framework. It's only by challenging and disputing the underlying premises can Democrats change the way that "strength" and "weakness" are understood.

The Democrats had such a smashing victory in 2006 because -- for the first time in a long time, and really despite themselves -- there was a perception (rightly or wrongly) that they actually stood for something different than the GOP in National Security (an end to the War in Iraq). Drawing a clear distinction with the deeply unpopular GOP is how Democrats look strong. The advice that they should "move to the center" and copy Republicans is guaranteed to make them look weak -- because it is weak. It's the definition of weakness.

The most distinctive and potent -- one could even say exciting -- aspect of Obama's campaign had been his aggressive refusal to accept GOP pieties on National Security, his insistence that the GOP would lose -- and should lose -- debates over who is "stronger" and more "patriotic" and who will keep us more safe. The widely-celebrated foreign policy memo written by Obama's adviser, Samantha Power, heaped scorn on Washington's national security "conventional wisdom," emphasizing how weak and vulnerable it has made the U.S. When Obama took that approach, he appeared to be, and in fact was, resolute and unapologetic in defending his own views -- the very attributes that define "strength."

The advice he's getting, and apparently beginning to follow, is now the opposite: that he should shed his prior beliefs in favor of the amorphous, fuzzy, conventional GOP-leaning Center, that he should cease to insist on a re-examination of National Security premises and instead live within the GOP framework. That's likely to lead to many things, but a perception of strength isn't one of them. One of the very few things in the universe with a worse track record than America's dominant Foreign Policy Community is the central religious belief of the Democratic consultant class and Beltway punditry that Democrats, to be successful, must shed their own beliefs and "move to the Center."

* * * * *

As a brief follow-up to the Keith-Olbermann-promoted claim that Obama's support for the FISA bill is justifiable not only because it lets him avoid being depicted as "soft on terror," but also because it leaves open the possibility that Obama can criminally prosecute telecoms once he's President, NPR correspondent Daniel Schorr said last January that he "can imagine Mr. Bush, if nothing else avails, issuing a blanket pardon for phone companies that may have broken the law." As I pointed out on Friday, a Bush pardon would completely foreclose any Secret Plan to prosecute the telecoms criminally, even if Obama really did harbor such a plan and intended to execute it (despite never having even hinted at any such thing). On Friday, Olbermann announced that he intends to deliver a "Special Comment" on Monday's show to elaborate on his "Obama/FISA" defense. When doing so, he should address this rather towering defect in his Obama-defending theory.

Keith Olbermann went to Daily Kos yesterday to respond to what I wrote yesterday regarding his and Jonathan Alter's statements on Obama's support for the FISA bill. Despite his having packed his response with substance-free invective, I'm going to keep the reply as dispassionate as possible because I'm not interested in engaging in some personality-driven spat of the type that he seems to enjoy. What's more, in the scheme of things, I don't consider Keith Olbermann to be The Enemy or, comparatively speaking, even a particularly bad influence to be targeted. I wrote about his comments yesterday because they reflect a broader trend that I do think matters.

In his Kos reply, Olbermann pronounces that my piece yesterday was "simplistic and childish" but then adds the standard dismissive Journalist defense: "I don't know much about Mr. Greenwald and I didn't read his full piece." He says that he refrained from criticizing Obama's support for the FISA bill in reliance on John Dean's comments, and "John Dean is the smartest person I've ever met" and "John Dean is worth 25 Glenn Greenwalds" -- so that settles that (for what it's worth, I also have a high opinion of Dean's legal acumen; hosted his appearance at FDL's Book Salon; don't disagree with him about this bill at all; have communicated with him about many issues; and he has said many complimentary things about my work in the past, so waving the flag of Dean's Unassailable Authority establishes nothing).

Olbermman then denies that he was justifying Obama's support for the FISA bill but then goes on to do exactly that:Seriously, there is little in the polls to suggest McCain has anything to run with other than terror . . . . So why hand them a brick to hit him with -- Obama Voted Against FISA -- if voting Aye enhances his chances of getting himself his own Attorney General to prosecute FISA.How can Olbermann accuse me of distorting his commentary and deny that he's rationalizing Obama's support for the bill and then write the above -- which does nothing but justify Obama's support for the bill? That's exactly the mentality I was criticizing yesterday -- that Obama should be excused for supporting this assault on core Constitutional liberties and the rule of law because doing so is necessary to avoid appearing Weak on Terrorism. That's the behavior which Obama has repeatedly vowed to reject, and it's that precise mentality that has to be extinguished, not perpetrated.

In his Daily Kos response, Olbermann -- just as he has done on his show repeatedly ever since Obama announced his support for the bill -- also suggested that Obama is harboring a Secret Benovelent Plan that he isn't telling anyone about whereby he is supporting the FISA bill so that he can prosecute the telecoms criminally once he's in office:But anybody who got as hot about this as I did would prefer to see a President Obama prosecuting the telecoms criminally, instead of seeing a Senator Obama engender more "soft on terror" crap by casting a token vote in favor of civil litigation that isn't going to pass since so many other Democrats caved anyway. . . . If it isn't the Senator's game plan, he'll catch hell from me about it later.[Olbermann, for whatever reasons, than lops on a paragraph at the end chiding unnamed people for "callousness expressed at Tim Russert's passing" and those who criticized Russert's journalism before "he was interred."]

This idea that John Dean and I have different opinions about this matter, that Dean is justifying what Obama did, and that therefore Olbermann -- by relying on the Supreme Authority of John Dean -- is being consistent in his remarks on FISA is bizarre, and it illustrates exactly why I wrote what I wrote yesterday. Olbermann is referring to comments Dean made on his show about the FISA bill last Friday. Here is the very first thing Dean said about the House bill that Obama now supports:DEAN: Well, I think, you've got to give one for the terrorists on our Fourth Amendment. They really did some damage today in this so-called compromise, contrary to what the speaker said that really does hurt the Constitution. So, it's very troubling and it's not a good day for civil liberties, particularly.Dean went on to speculate that because the bill is poorly drafted, an argument might be constructed that it extinguishes only civil liability for the telecoms but fails to immunize them from criminal liability.

I don't disagree with that. In fact, it doesn't seem to be through sloppiness or neglect -- but rather through deliberate intent -- that the bill only immunizes telecoms from civil, not criminal, liability (the key telecom section, 802(a), provides that "a civil action may not lie or be maintained against any person providing assistance to the intelligence community" where the bill's conditions are met). There are likely many reasons for confining immunity to civil liability -- including the heightened difficulty of proving criminal intent and, most importantly, the fact that Bush, on his way out, can pardon telecoms from criminal but not civil liability. So it's far from certain that Obama -- even if he did have a Secret Plan criminally to prosecute telecoms once in office -- would even be able to do so. If Bush pardons everyone connected to his illegal spying program, as many have speculated he might, then Obama's Secret Plan -- even if it existed -- would be instanteously extinguished. That's why these telecom lawsuits are the only real avenue left to ensure accountability and obtain a legal ruling on what was done.

But beyond all that, to give Obama a pass on his support for such a heinous bill -- one which Dean himself describes as a grave assault on the Constitution -- based on this imagined secret plan for the Good that Obama is harboring is to illustrate exactly the sort of blind faith in political leaders that is so dangerous. That's been the Right's mentality to excuse every last thing Bush does:It may look to you like Bush is breaking the law or doing something wrong, but he's a Good person and so we can trust in him that he's doing it for our own Good, even when he doesn't tell us why he's doing it and even when he keeps his real motives a secret. He probably has a good reason for doing these things and we don't need to know what that is. Besides, we're facing such an extreme crisis that it's more important to support him than criticize him even when we don't understand why he's doing something and even when we don't know what it is that he's doing.No political leader deserves that sort of blind faith -- not Bush and not Obama. That's how a small child thinks about his Daddy, not how a citizen should think about a political leader. As the commenter sysprog wrote the other day:Four-year-olds see their preferred politicians as god-like fathers (or mothers) whose virtuous character will guarantee good judgment. If a judgment looks questionable to you, then it's because you don't know all the facts that mommy and daddy know, or it's because you aren't as wise as them.Down that mental road lies uncritical devotion to a Leader for even the most unjustifiable political acts. Depicting a bill with telecom amnesty when Bush supports it as "textbook Fascism," only to then depict Obama's support for such a bill as "refusing to cower to the Left," is simply inexcusable.

Notably, even beyond Olbermann's excuse, there have been all sorts of other theories about how Obama is harboring other Secret Plans that justify his support for this FISA bill. One widely cited Kos diary yesterday claimed that since the real danger to the Fourth Amendment is the Patriot Act's elimination of "the wall" between foreign intelligence and law enforcement, rather than FISA, Obama has decided to allow the FISA bill to pass so that he can gain power in order to implement a different Secret Plan to abolish the oppressive parts of the Patriot Act (however bad the Patriot Act is, allowing warrantless spying under FISA makes it worse). Another top Kos diary -- entitled "Obama's Outsmarted Us Again" -- echoed Jonathan Alter's rationalizations by claiming that Obama's support for this bill was part of a brilliant plan he has to impose Constitutional limits on Bush in his last six months in office. Apparently, Obama's unfailing Goodness is so absolute that even when it appears he's doing something wrong, that's just a failure on our part to discern his secret plan to protect us all.

As he mentions in his Kos diary, Olbermann had the full-fledged pro-Obama Markos Moulitsas on his show on Monday night and tried to get Markos to embrace this excuse for Obama. Markos rejected it emphatically:OLBERMANN: But to the point of the Constitution, John Dean made a fascinating point on this news hour on Friday. He read this bill and he knows a little something about the Constitution, too. He says it's so sloppily written that nothing in there would rule out later criminal liabilities for the telecom companies.

Could that be, actually, what Obama is counting on, just sort of cede this civil action stuff which is basically in lieu of sending these people to jail and just concentrate on, you know, closing up whatever perceived weakness there is of the Democrats being soft on counterterror and, in fact, just hold a bigger punch back until after the election?

MOULITSAS: Well, if that's the strategy, he has said nothing to indicate that and this is not the sort of thing that I think you have to keep quiet and secretive. I mean, if that's his strategy, he can say, "This is a bill that's flawed," but, really at the end of the day he has a chance to stand for the Constitution and to show that he will protect it against forces that seek to undermine it and he will show that he has, like I said before, that he is a leader and will take the mantle of leadership on this issue and take control of the Democratic Party.Markos -- who observed: "I don't think he's going to lose any support, I mean, let's be honest. I mean, it's either Obama or John McCain" -- nonetheless added:I think what's at stake, though, is a lot of the intensity of support for Barack Obama. And he spent the last two years telling us how he's going to be the leader of the free world, not to mention the Democratic Party and this nation . . . . I don't want to hear him talk about leadership. I don't want to hear him talk about defending the Constitution; I want to see him do it.That is precisely the point, and of course those who believe in defending core constitutional liberties shouldn't remain quiet when any politician -- including Obama -- takes actions to erode them.

What is most disturbing here is that people (including Olbermann) who for so long have vehemently criticized Democratic leaders for capitulating to Bush and trampling on the Constitution out of fear of looking "Weak" are now invoking that very excuse to justify what Obama is doing here (that's what Olbermann explicitly did in his Kos reply). To excuse Obama's conduct on that basis is to perpetuate Democratic complicity. Obama had -- and will continue to have -- a critical opportunity to reject and debunk that rancid framework, and it is his embrace of that framework here ("I'm going to give Bush what he wants and trample on the Constitution in order to avoid being 'weak'") that makes what Obama has done here so harmful and worthy of criticism.

Beyond that, there's just no getting around the fact that the bill Obama is supporting is another nail in the coffin of Fourth Amendment protections and privacy rights, and -- just as bad, if not worse -- will almost certainly put an end to any opportunity to find out what Bush's illegal spying entailed and to obtain a judicial ruling as to its illegality. This isn't just another bad bill. It marks a disgraceful end -- a cover-up -- of one of the most extreme Bush lawbreaking scandals (combined with legalization of many of the criminal acts), and it is a disgraceful conclusion for which Democrats are largely responsible. It's possible that Obama couldn't have stopped it even with vigorous opposition -- though it's also possible that, as the leader of the Party, he could have -- but either way, he is supporting not just a bad bill, but one that stomps on core constitutional liberties and which conceals and protects rampant lawbreaking.

I've written endlessly on all of the reasons why a John McCain presidency would be disastrous for this country. The entire last chapter of my book is devoted exclusively to documenting that fact. I have no doubt I will write much more on that topic between now and November. I still think that just as strongly. But basic honesty and adherence to one's core political values compels criticism for what Obama is doing here, and it's just distasteful and destructive -- not to mention dangerous -- for people to invoke patently false rationalizations in order to excuse or support what he's doing.

On January 31 of this year, Keith Olbermann donned his most serious face and most indignant voice tone to rail against George Bush for supporting telecom immunity and revisions to FISA. In a 10-minute "Special Comment," the MSNBC star condemned Bush for wanting to "retroactively immunize corporate criminals," and said that telecom immnity is "an ex post facto law, which would clear the phone giants from responsibility for their systematic, aggressive and blatant collaboration with [Bush's] illegal and unjustified spying on Americans under this flimsy guise of looking for any terrorists who are stupid enough to make a collect call or send a mass email."

Olbermann added that telecom amnesty was a "shameless, breathless, literally textbook example of Fascism -- the merged efforts of government and corporations that answer to no government." Noting the numerous telecom lobbyists connected to the Bush administration, Olbermann said: This is no longer just a farce in which protecting telecoms is dressed up as protecting us from terrorists conference cells. Now it begins to look like the bureaucrats of the Third Reich, trying to protect the Krupp family, the industrial giants, re-writing the laws of Germany for their benefit.Olbermann closed by scoffing at the idea that telecom amnesty or revisions to FISA were necessary to help National Security:There is not a choice of protecting the telecoms from prosecution or protecting the people from terrorism, Sir. This is a choice of protecting the telecoms from prosecution or pretending to protect the people from terrorists. Sorry, Mr. Bush, the eavesdropping provisions of FISA have obviously had no impact on counter-terrorism, and there is no current or perceived terrorist threat the thwarting of which could hinge on an email or phone call that is going through Room 641 of AT&T in San Francisco.Strong and righteous words indeed. But that was five whole months ago, when George Bush was urging enactment of a law with retroactive immunity and a lessening of FISA protections. Now that Barack Obama supports a law that does the same thing -- and now that Obama justifies that support by claiming that immunity and revising FISA are necessary to keep us Safe from the Terrorists -- everything has changed.

Last night, Olbermann invited Newsweek's Jonathan Alter onto his show to discuss Obama's support for the FISA and telecom amnesty bill. There wasn't a syllable uttered about "immunizing corporate criminals" or "textbook examples of Fascism" or the Third Reich. There wasn't a word of rational criticism of the bill either. Instead, the two media stars jointly hailed Obama's bravery and strength -- as evidenced by his "standing up to the left" in order to support this important centrist FISA compromise:OLBERMANN: Asked by "Rolling Stone" publisher, Jann Wenner, about how Democrats have cowered in the wake of past Republican attacks, Senator Obama responding, quote, "Yeah, I don't do cowering." That's evident today in at least three issues . . .

Senator Obama also refusing to cower even to the left on the subject of warrantless wiretapping. He's planning to vote for the FISA compromise legislation, putting him at odds with members of his own party . . . But first, it's time to bring in our own Jonathan Alter, also, of course, senior editor of "Newsweek" magazine.

Good evening, Jon.

JONATHAN ALTER, NEWSWEEK: Hi, Keith.

OLBERMANN: "Yeah, I don't do cowering." This is not just the man, but the campaign?

ALTER: Yes. This is part of the message that is consistent across the last couple weeks and it comes down to one word -- strength. The United States is not going to elect a president that perceives to be as weak. You look weak if you're flip-flopping. You look weak if you're not taking actions that seem to be securing the United States against terrorists. And you look weak if you don't fight back against your political adversaries.

OLBERMANN: But this cuts, I mean, this terminology cuts in more than one direction here. Not cowering to Republicans is one thing in the Democratic, recent Democratic history, it's a thing that I think anybody who has a "D" near their name cheers, but not cowering to the left, not going along with the conventional, the new conventional thinking on the FISA bill, that's something altogether different, isn't it?

ALTER: Yes. I don't really think it is. It was only a matter of time before the left was disappointed in Barack Obama, at least in a limited way. No politician is ever going to do everything that somebody likes.

And I think some folks in the netroots in particular on this FISA bill who are, you know, pulling their hair out over this, they have to realize, he's always been a politician, he'll always be a politician, and politics is the art of the possible. And he's a legislator. He knows that you can't always get everything that you want in a bill, even if he personally believes that the immunity for Telcoms is a bad idea. The larger idea of the bill was important.

And I actually think one of the big points, Keith, that hasn't been made about this bill is that currently, as of last August, since last August, we've been operating in an unconstitutional environment, clear violation of the Fourth Amendment.

So, there was tremendous urgency to get the FISA court back into the game. And does this bill do it imperfectly? Yes. But it does do it and it restores the Constitution, which is a point that's not getting made very much.Leave aside the fact that Jonathan Alter, desperate to defend Obama, doesn't have the slightest idea of what he's talking about. How can a bill which increases the President's authority to eavesdrop with no warrants over the current FISA law possibly be described as a restoration of the Fourth Amendment? That would be like describing a new law banning anti-war speech as a restoration of the First Amendment.

As Jim Dempsey and Marty Lederman both note, not even the nation's most foremost FISA experts really know the full extent to which this bill allows new warrantless spying. Obviously, Jonathan Alter has no idea what he's saying, but nonetheless decrees that this bill -- now that Obama supports it -- restores the Fourth Amendment. Those are the Orwellian lengths to which people like Olbermann and Alter are apparently willing to go in order to offer their blind devotion to Barack Obama.

Moreover, Alter's own explanation is self-contradictory. In the course of praising Obama's FISA stance, he says that a politician looks "weak if you're flip-flopping" and "you look weak if you don't fight back against your political adversaries." But that's exactly what Obama is doing here -- completely reversing himself on telecom amnesty and warrantless eavesdropping, all in order to give the right-wing of the GOP everything it wants on national security issues in order to avoid a fight. By Alter's own reasoning, what Obama's doing is "weak" in the extreme, yet Alter bizarrely praises Obama for showing "strength."

All of the decades-old, conventional Beltway mythologies are trotted out here to praise Obama. Democrats move to the "center" by embracing hard-core right-wing policies. Democrats will look "weak" unless they turn themselves into Republican clones on national security. A President becomes "strong" when he tramples on the Constitution and the rule of law in the name of keeping us safe. Democrats must embrace the Right and repudiate the base of their own party, and they must support Dick Cheney's