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The campaign of Sen. John McCain, eager to portray Sen. Barack Obama as someone who won't stick to his principles, has alleged that Obama flip-flopped on warrantless wiretapping.
McCain's spokesman said Obama reversed a vow to filibuster any bill that immunized phone companies from lawsuits for letting the government eavesdrop on their customers without warrants.
"A few short months ago, Barack Obama outwardly opposed terrorist surveillance legislation, saying that he would filibuster any bill that includes immunity for American telecommunications companies that had been asked by the government to participate in the program," McCain spokesman Tucker Bounds said in a news release on July 9, 2008. "Today, the U.S. Senate will approve legislation providing the immunity Barack Obama supposedly opposed, and despite his promise, he will not support a filibuster."
At issue is a surveillance program launched by the National Security Agency after the attacks of Sept. 11, 2001. The agency asked telecommunications companies such as AT&T Inc. and Verizon Communications Inc. to help it monitor the international calls and e-mails of customers in the United States without warrants.
The Foreign Intelligence Surveillance Act requires court approval for domestic surveillance. Anyone who violates the law is subject to fines of up to $10,000 or five years in prison.
So after the New York Times exposed the wiretapping program in 2005, the telecommunications companies were vulnerable to lawsuits from irate customers. According to the American Civil Liberties Union, 46 lawsuits have been filed against the phone companies.
The Bush administration asked Congress last year to grant the telecom companies immunity from the lawsuits. McCain and most other Republicans supported a measure that would do so, but some Democratic leaders, under pressure from liberal bloggers and civil liberties advocates, opposed it.
Obama was one of those leaders.
In October 2007, Obama spokesman Bill Burton issued this unequivocal statement to the liberal blog TPM Election Central: "To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies."
Key segments of the Democratic base — enjoying substantial influence in the run-up to the Democratic presidential primaries — were pleased. "This is the kind of leadership we need to see from the Democratic candidates," MoveOn spokesman Adam Green said at the time.
But recently the Senate again took up legislation that would let the phone companies off the hook. It would also expand the government's domestic spying powers.
Obama supported an amendment that would have stripped telecom immunity from the measure. But after that amendment failed, Obama declined to filibuster the bill. In fact, he voted for it. It passed the Senate, 69-28, on July 9. The House passed the same bill last month, and Bush said he would sign it soon. (McCain missed the vote because he was campaigning in Ohio, but he has consistently supported the immunity plan.)
In a message to supporters, Obama defended his position, citing a phrase Democrats fought to include that the Foreign Intelligence Surveillance Act is the "exclusive" means of wiretapping for intelligence. The bill "is far better than the Protect America Act that I voted against last year... (because it) makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court."
Obama also cited a provision requiring several inspectors general — who are internal government watchdogs — to investigate the program. "It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues," Obama said.
None of that, however, negates Obama's promise to filibuster "any bill that includes retroactive immunity for telecommunications companies." He declined to do so.
Obama's campaign did not respond to our request for comment. But in this case, it's clear that the McCain campaign's accusation of a flip-flop is True.
JohnMcCain.com, Barack Obama's FISA Flip Front and Center, July 9, 2008
My.barackobama.com, Response from Barack on FISA and Discussion with Policy Staff , July 3, 2008
New York Times, Bush Lets U.S. Spy on Callers Without Courts, Dec. 16, 2005
TPM Election Central, Obama Camp Says It: He'll Support Filibuster Of Any Bill Containing Telecom Immunity , Oct. 24, 2007
New York Times, Obama Voters Protest His Switch on Telecom Immunity, July 2, 2008
Associated Press, Senate Approves Telecom Immunity and New Eavesdropping Rules, July 9, 2008
Cornell University Law School, U.S. Code Collection
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