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Was Barack Obama against wiretapping before he was for it?
Pundits got their turn Sunday to weigh in on the news of the week regarding the National Security Agency’s once-secret surveillance programs, dissecting recommendations to restrict the program from an advisory panel and a ruling from a federal judge that the phone data collection program is likely unconstitutional.
Was the news of the week a validation of NSA whistleblower Edward Snowden, an obvious affirmation of Americans’ privacy rights?
On ABC’s This Week, conservative pundit Bill Kristol seemed to downplay the events of the week, calling the judge’s ruling an outlier.
"I don’t agree with all the stuff, ‘Thank God for Edward Snowden, we wouldn’t be having this debate.’ We had a big debate in Congress on this in 2006, 2007, and in fact we passed legislation in 2007. We had a big debate about this, President (Barack) Obama discussed this. President Obama is a constitutional law professor, he came into office very concerned about the terrible ..."
ABC political analyst Matthew Dowd jumped in as Kristol spoke to say Obama’s performance in this area is "exceedingly disappointing."
"I’m sorry, then he became president of the United States," Kristol replied. "He got all the briefings, he saw seriously what was going on, and basically he decided, I think, correctly, that you know what, the balance is probably pretty appropriately struck. Now he’s shifting ... entirely because of optics."
PunditFact wanted to know if Kristol is correct about Obama’s evolution on government spying programs.
Obama in the Senate
In his early years in the Senate, Obama was a reliable critic of the post-Sept. 11 surveillance efforts launched by President George W. Bush.
In 2005, the New York Times exposed a Bush executive order allowing the National Security Agency to tap Americans’ international phone calls and emails in effort to track terrorists without seeking search warrants from the courts. The Times reported the agency was still seeking warrants for monitoring domestic communications.
As the Senate voted to reauthorize the Patriot Act that same week, Obama decried the administration’s "fishing expedition" of Americans’ everyday electronic records in a floor speech: "This is just plain wrong. ... Giving law enforcement the tools they need to investigate suspicious activity is one thing – and it’s the right thing – but doing it without any real oversight seriously jeopardizes the rights of all Americans and the ideals America stands for."
In a 2006 speech explaining why he would vote against confirming Michael Hayden as the director of the Central Intelligence Agency in 2006, Obama said:
"We don’t expect the president to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two co-equal branches of government — Congress and the Judiciary — to have the ability to monitor and oversee such a program."
And: "We need to find a way forward to make sure that we can stop terrorists while protecting the privacy, and liberty, of innocent Americans. As a nation we have to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power. What protects us, and what distinguishes us, are the procedures we put in place to protect that balance, namely judicial warrants and congressional review. ... These are concrete safeguards to make sure surveillance hasn’t gone too far."
Obama as a candidate for president
Fast forward to 2007. Obama is running for president -- and still criticizing Bush for operating without enough oversight.
He said the Bush administration "puts forward a false choice between the liberties we cherish and the security we provide."
According to the Des Moines Register (via National Review Online), he said, "When I am president, there will be no more illegal wiretapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war."
The next year, however, he faced charges of flip-flopping on warrantless wiretapping by his Republican rival, Sen. John McCain.
At issue was legislation in 2008 that rewrote the rules of the Foreign Intelligence Surveillance Act, the 1978 law that lays out rules for spying in the country and created a secret court of judges to oversee it. Congress amended the law amid backlash. One of the most controversial questions was whether to grant retroactive immunity to telecommunications companies that had turned over network data to the government, as the companies were vulnerable to lawsuits following the Times exposé.
Obama’s campaign said he would oppose a bill that provided retroactive immunity for the companies.
But he ended up joining 68 senators who voted for it, disappointing some on the left as well as advocates of civil liberties.
The changes to FISA in 2008 essentially legalized warrantless wiretapping that had been going on, Molly Bishop Shadel, an expert in foreign intelligence law at the University of Virginia School of Law, previously told PunditFact.
"Congress expanded the scope of FISA even though it knew or should have known that the NSA had done something questionable," she said.
Obama defended his vote to supporters by saying the new law includes checks and balances that weren’t in place before.
"Senator Obama has said before that the compromise bill is not perfect," his campaign said in a statement at the time. "Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, Senator Obama chose to support the FISA compromise."
Obama explained 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."
Still, PolitiFact rated McCain’s claim that Obama flip-flopped after promising to filibuster a bill that provided retroactive immunity to the telecommunications companies as True.
Obama as president
No substantial legislative oversight has been added to the Patriot Act since Obama took over the White House.
Obama signed a five-year extension of the FISA Amendments Act in December 2012. The Senate rejected amendments that would have required intelligence agencies to report more information about their work to Congress.
Following Snowden’s revelations, Obama defended two surveillance programs using some of the language Kristol mentioned.
"You can't have 100 percent security and also have 100 percent privacy and zero inconvenience. We're going to have to make some choices as a government," Obama said.
"You can complain about Big Brother and how this is a potential program run amok, but when you actually look at the details, I think we've struck the right balance."
We’ll close by looking at Obama’s performance on campaign promises on this subject, including his promise to update the FISA law so there is greater congressional oversight and his promise to "revisit the Patriot Act to ensure that there is real and robust oversight of tools like National Security letters, sneak-and-peek searches, and the use of the material witness provision."
Obama said he would restrict warrantless wiretapping by strengthening intelligence agencies’ accountability to Congress, which is rated Compromise. Obama signed a reauthorization of the Patriot Act in 2011 that did not include more oversight, though his Justice Department did voluntarily move to add additional measures included in a bill that failed in the Senate.
Obama also promised to "revisit the Patriot Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches, and the use of the material witness provision," which PolitiFact also rated as a Compromise.
Kristol said Obama "came into office very concerned about" wiretappings but "then he became president of the United States, he got all the briefings … (and) he decided … the balance is probably pretty appropriately struck."
That’s true, to a point.
Obama’s concerns for Bush-era surveillance tactics have certainly dwindled since he took office -- and he has defended ongoing, recently exposed confidential surveillance programs.
But Obama’s opinions shifted even before he moved into the White House. Most notably, he voted for a bill that essentially approved warrantless wiretapping in July 2008. The shift was so notable that his presidential rival at the time called him a flip-flopper.
We rate this statement Mostly True.
PolitiFact, "Barack Obama on surveillance, then and now," July 23, 2013
PolitiFact, "What a difference eight months makes," July 8, 2008
PunditFact, "Comedy Central's Jon Stewart: Congress' shock at spying on allies rings hollow," Nov. 5, 2013
PolitiFact, "Are Americans being ‘targeted’ for surveillance?," July 2, 2013
PolitiFact, "Sen. Udall says ordinary Americans’ business records caught up in surveillance net," June 13, 2013
PolitiFact, "The Obameter: Safeguard the right to privacy," Jan. 14, 2013
PolitiFact, "The Obameter: Revise the Patriot Act to increase oversight on government surveillance," July 21, 2011
PolitiFact, "The Obameter: Restrict warrantless wiretaps," Oct. 25, 2011
PolitiFact Georgia, "Phone call surveillance policy no mystery, congressman says," July 8, 2013
POLITICO, "President Obama defends surveillance," June 6, 2013
New York Times, "Obama on surveillance, then and now," June 6, 2013
New York Times, "Bush Lets U.S. Spy on Callers Without Courts," Dec. 16, 2005
New York Times, "Officials say U.S. wiretaps exceeded the law," April 15, 2009
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
ProPublica, Mass Surveillance in America: A Timeline of Loosening Laws and Practices
Legal Information Institute, 50 USC § 1861 - Access to certain business records for foreign intelligence and international terrorism investigations
Legal Information Institute, 50 USC § 1881a - Procedures for targeting certain persons outside the United States other than United States persons
Legal Information Institute, 50 USC § 1804 - Applications for court orders
Legal Information Institute, 50 USC § 1805 - Issuance of order
Legal Information Institute, 50 USC § 1801 - Definitions
Washington Post, "Obama joins Fellow Senators in Passing New Wiretapping Measure," July 10, 2008
Washington Post, "Senate Debates Rewrite of '78 Law That Created Secret Intelligence Court," June 26, 2008
National Archives, Executive Order 12333
Electronic Frontier Foundation, Congress Disgracefully Approves the FISA Warrantless Spying Bill for Five More Years, Rejects All Privacy Amendments, Dec. 28, 2012
Electronic Frontier Foundation, "Why We Should All Care About Today's Senate Vote on the FISA Amendments Act, the Warrantless Domestic Spying Bill," Dec. 27, 2012
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