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Clinton, Obama split on wiretap vote
Nick Juliano
Published: Wednesday July 9, 2008

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Update: Clinton says FISA update 'comes up short'

Way back in October, when they were both just approaching what would become perhaps the hardest fought Democratic primary in recent history, both Barack Obama and Hillary Clinton were firm in their denunciations of the Bush administration's attempts to grant legal immunity to telecommunications companies that helped him spy on Americans.

Both then promised to support efforts being mounted by Sen. Chris Dodd (D-CT), who at the time was a dark horse candidate, to filibuster an update to the Foreign Intelligence Surveillance Act.

On Wednesday -- nine months after those initial commitments and nearly a year since the Senate passed a temporary draconian surveillance bill they both opposed -- a FISA bill very similar to the one they initially didn't like came before the Senate. It would have allowed the National Security Agency to collect massive amounts of Americans overseas communications without individual warrants while essentially freeing from oversight telecommunications companies that critics say broke the law in facilitating Bush's initial program.

Senators tried to mount a filibuster of the bill, just the kind of procedural motion Clinton and Obama said they supported nine months ago, eight months ago, seven months ago, six months ago, and so on. Clinton supported the filibuster Wednesday; Obama opposed it.

When the final FISA bill came up for a vote, immunity and all, Clinton opposed it; Obama supported it.

The junior senator from Illinois's shift in position was expected -- he declared his support after the House passed it last month -- but Clinton had been quieter on the issue.

"While this legislation does strengthen oversight of the administration's surveillance activities over previous drafts, in many respects, the oversight in the bill continues to come up short," Clinton said in a statement released after the vote.

Congress must vigorously check and balance the president even in the face of dangerous enemies and at a time of war. That is what sets us apart. And that is what is vital to ensuring that any tool designed to protect us is used and used within the law for that purpose and that purpose alone. I believe my responsibility requires that I vote against this compromise, and I will continue to pursue reforms that will improve our ability to collect intelligence in our efforts to combat terror and to oversee that authority in Congress.

The former first lady apparently did not decide how she would vote until Wednesday, according to Newsday's Glenn Thrush, who notes that the vote "puts Clinton in a bind."

If she backs the bill, she'll be accused of reneging on her promise [to filibuster it]. If she votes no, she runs the risk of jeopardizing her newfound alliance with Obama.

After the Senate votes Wednesday, Obama and Clinton were scheduled to go to New York together for a joint fundraiser. It's unclear whether the two will discuss their diverging wiretap votes.

Obama has tried to explain his changed position on immunity, pointing to the more pressing needs to fix national security infrastructure, but critics on the left -- including plenty of the same progressive activists who helped him vanquish Clinton in the primaries -- are still furious.

Obama told supporters they don't have to agree with him on everything, and reminded them that the differences between himself and John McCain were too great to get hung up on individual disagreements.

And if Obama thought the Republicans would lay off him once he decided to support a bill they all love so dearly, he was sorely mistaken. GOP nominee McCain, who decided campaigning in some swing states was more important that being present for the FISA vote, nonetheless blasted Obama's "FISA Flip Flop" in a Wednesday morning press release. The Republican National Committee likewise slammed his "politically expedient" shift in position.

To be sure, McCain and the RNC would've blasted Obama regardless of how he voted on FISA, but if he'd stuck to his guns at least the candidate would have only needed to defend one flank.


Clinton's full statement is reprinted below:

STATEMENT OF SENATOR HILLARY RODHAM CLINTON ON THE FISA AMENDMENTS ACT OF 2008

July 9, 2008

One of the great challenges before us as a nation is remaining steadfast in our fight against terrorism while preserving our commitment to the rule of law and individual liberty. As a senator from New York on September 11, I understand the importance of taking any and all necessary steps to protect our nation from those who would do us harm. I believe strongly that we must modernize our surveillance laws in order to provide intelligence professionals the tools needed to fight terrorism and make our country more secure. However, any surveillance program must contain safeguards to protect the rights of Americans against abuse, and to preserve clear lines of oversight and accountability over this administration. I applaud the efforts of my colleagues who negotiated this legislation, and I respect my colleagues who reached a different conclusion on today's vote. I do so because this is a difficult issue. Nonetheless, I could not vote for the legislation in its current form.

The legislation would overhaul the law that governs the administration's surveillance activities. Some of the legislation's provisions place guidelines and restrictions on the operational details of the surveillance activities, others increase judicial and legislative oversight of those activities, and still others relate to immunity for telecommunications companies that participated in the administration's surveillance activities.

While this legislation does strengthen oversight of the administration's surveillance activities over previous drafts, in many respects, the oversight in the bill continues to come up short. For instance, while the bill nominally calls for increased oversight by the FISA Court, its ability to serve as a meaningful check on the President's power is debatable. The clearest example of this is the limited power given to the FISA Court to review the government's targeting and minimization procedures.

But the legislation has other significant shortcomings. The legislation also makes no meaningful change to the immunity provisions. There is little disagreement that the legislation effectively grants retroactive immunity to the telecommunications companies. In my judgment, immunity under these circumstances has the practical effect of shutting down a critical avenue for holding the administration accountable for its conduct. It is precisely why I have supported efforts in the Senate to strip the bill of these provisions, both today and during previous debates on this subject. Unfortunately, these efforts have been unsuccessful.

What is more, even as we considered this legislation, the administration refused to allow the overwhelming majority of Senators to examine the warrantless wiretapping program. This made it exceedingly difficult for those Senators who are not on the Intelligence and Judiciary Committees to assess the need for the operational details of the legislation, and whether greater protections are necessary. The same can be said for an assessment of the telecom immunity provisions. On an issue of such tremendous importance to our citizens and in particular to New Yorkers all Senators should have been entitled to receive briefings that would have enabled them to make an informed decision about the merits of this legislation. I cannot support this legislation when we know neither the nature of the surveillance activities authorized nor the role played by telecommunications companies granted immunity.

Congress must vigorously check and balance the president even in the face of dangerous enemies and at a time of war. That is what sets us apart. And that is what is vital to ensuring that any tool designed to protect us is used and used within the law for that purpose and that purpose alone. I believe my responsibility requires that I vote against this compromise, and I will continue to pursue reforms that will improve our ability to collect intelligence in our efforts to combat terror and to oversee that authority in Congress.

 
 


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