I'm sorry.  I know I'm probably making these thing too damn long, but if I don't do it like this, I'm afraid something will get left out...you know, like the Mainstream Media does every day.

Today, Barack was in Powder Springs, GA to give a rousing speech on the Economy.  While he was there, he participated in a town hall, and said this to the crowd:

"You're not going to agree with me on 100 percent of what I think, but don't assume that if I don't agree with you on something that it must be because I'm doing that politically," he said. "I may just disagree with you."

Hey, blogosphere.  He talkin' about you...

Clearly, he has  disagreed with a lot of people on this very site about the FISA Legislation about to pass the Senate.  I can't say I'm fond of the idea myself.

This would normally be the part where I'd summarize the sad history of the FISA Legislation, and how we call came to be here, but the New York Times did it so much better on Feb. 28th:

It seems to be we are having two different arguments about FISA, and getting them confused.

One is about Telecomm Immunity.  The other is about the nature of FISA itself. 

The Fourth Amendment of the United States Constitution, the thing that's supposedly being threatened says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No warrants...shall issue.

The idea of wiretapping was probably beyond the foresight of the Founders.  Heck, the idea of attacking Skyscrapers with Airplanes (much less Skyscrapers and Airplanes themselves) was beyond the foresight of the Founders.  I guess the question boils down to how do you feel about Wiretapping possible or actual Terrorists in a secret court where no one hears the evidence against them, no probable cause is known, and the what started the wiretapping in the first place is never revealed.  There is something terribly Orwellian about Secret Courts like that.

On the other hand, how else can it be done?

Let's be honest, the strictest interpretation of the Fourth Amendment would require Law Enforcement to present a warrant to the suspect in question before wiretapping begins.

No warrants...shall issue. 

"Hi, Zacarias Moussaoui?  We're from the FBI.  You're under suspicion of being a Terrorist Agent.  We're going to start Wiretapping you now.  Here's your Paperwork."

You think that would be conducive with good Law Enforcement or Intelligence work?  Do you honestly expect a criminal to maintain illegal behavior knowing the Government is listening in?

Secrecy seems to be the only way to initiate this kind of surveillance, while trying to follow the tenets of the Fourth Amendment...would be to use a process similar the FISA Courts.

Not saying it's perfect.  Just understanding how it came to be. 

Senator Obama said this in his Blog post of July 3rd.

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer.

It strikes me that if you are uncomfortable with wiretapping Foreign Agents, you may be uncomfortable with wiretapping in general.  You probably think all of it goes against the Fourth Amendment.  Maybe it does.  On principle your wariness is a very good idea.  We should always be suspicious of Government power.  As a matter of practicality then, how do you then stop terrorist acts before they happen?  Because that's the idea.  As much as I appreciate the whole guilty until proven innocent thing, I've thought about it, and I definitely want Terrorist acts stopped before they're committed.

But then, aren't we prosecuting thought crimes, or pre-crimes, and--WHOOOAA!!

Okay.  Brain freeze. 

This is one of those arguments that would either get you really jazzed to be in Law School, or give you a splitting headache.

Since splitting headaches are why I avoided Law School, I'm willing to admit there's a Legal argument out there that I'm missed.  I don't know the answer.  I want our Intelligence Services out there, ferreting out the bad guys, and preventing attacks, but I want our Constitution preserved at the same time.  It's hard to believe I'm asking to too much.  I don't like how these surveillance taps are almost like Phishing.  At the same time, we're not just talking about surveillance on Terrorists suspects, whether they're foreign or not, we're talking about innocent Americans getting swept up in massive data grabs.  Data grabs don't strike me as sound Law Enforcement either.  What if an actual Terrorist tries to dial his contact, transposes the 6 and the 9, and gets my home number instead?  Does that mean Johnny G-Man is listening to me?

Yeah, probably.

I know the Cops say they need these expanded powers, but I don't necessarily believe them.  9/11 could have been prevented without wiretaps.  Good detective work could have traced the Hijackers to their flight schools.  Tracing the money would have helped also, as well as sharing the information amongst the Intelligence Agencies.  Civil Libertarians are right that we shouldn't be scared into throwing away our Liberties, but at the same time we can't blindly handcuff Law Enforcement.  If the law is hampering the way investigations are run, then the law should be changed.

I'm not trying to rationalize Congressional action, or inaction.  I'm just trying to give you an idea of what honest politicians are wrestling with.  It's hard to see shades of grey when everyone is hellbent on keeping it black and white.

There's an argument to be had over the nature of wiretapping.  None it seems, will be brooked over Telecomm Immunity.  After all, giving the Telcomms Immunity will be the end of the Fourth Amendment. 

Really? 

I'm getting the feeling, y'all forgotten why we were against Telecomm Immunity in the first place.

Remember, we're not after the Telecomm Companies, we're after the Bush Administration.

Don't get me wrong.  I wouldn't mind burning me some Telecomms.  They're no friends of mine, especially those idiots at AT&T's Billing Department (three months to refund an online purchase my @#$$%).

But we're after Donald Rumsfeld, not Lynndie England.

We want Tony Soprano, not Paulie Walnuts.

The idea has been universal to virtually every Mob movie ever made.  Getting Paulie Walnuts to rat out Tony is way more valuable than just getting Paulie himself, as bad as a guy he was.

The Telecomms are the Paulies in this equation, but they might need some arm-twisting.  The Civil Lawsuits hanging over their heads struck me as a terrific way of doing that.  But, according to John Dean Civil Immunity doesn't stop us from investigating the Bush Administration.

I have taken a closer look at the House-passed bill and tracked its legislative history. It is clear not only from the language of the bill (which must be read in the context of other, related statutes to be clearly understood), but also from the legislative history, that there is absolutely no criminal immunity for anyone in these FISA amendments.

In addition, I spoke with the Washington office of the ACLU, which has been following the legislation closely while trying to limit its further rollback of prior protections of civil liberties. The ACLU agrees that there is no criminal immunity, and while this fact had been largely overlooked, Legislative Counsel Michelle Richardson said this point had been mentioned in passing in both the House and Senate during the debate. With a little more digging, I found that the sponsors, as well as the Bush Administration, also understand that there is no immunity in the House-passed bill from criminal prosecutions for violations by anyone.

The House-passed bill has provisions virtually identical to many in the earlier Senate-passed bill. No one in the Senate watches out for the best interests of Bush Administration better than Republican Senator (and former presidential candidate) Sam Brownback of Kansas. During the January 24, 2008 debate in the Senate, Senator Brownback noted, “The immunity provisions would not apply to the Government or Government officials. Cases against the Government regarding the alleged programs would continue. And the provisions would apply only to civil and not criminal cases.”

So, even if we don't get the Telecomms in Civil Court, we can go after them Criminally...

At the same time, no one in the Bush Administration has been granted immunity, period.

So, what are we angry about again?

Granted, I'm not in love with this.  Even John Dean described the legislation as being "written on the hood of a car", and I don't like the idea of the Telecommunications Industry buying their way out of trouble.

But what's really at stake is what's going to happen next, because the resolution of this matter has been punted to January 21st.  And it is here, that we have some hope.

What I would want to do is to have my Justice Department and my Attorney General immediately review the information that's already there and to find out are there inquiries that need to be pursued. I can't prejudge that because we don't have access to all the material right now. I think that you are right, if crimes have been committed, they should be investigated. You're also right that I would not want my first term consumed by what was perceived on the part of Republicans as a partisan witch hunt because I think we've got too many problems we've got to solve.

So this is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity. You know, I often get questions about impeachment at town hall meetings and I've said that is not something I think would be fruitful to pursue because I think that impeachment is something that should be reserved for exceptional circumstances. Now, if I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law -- and I think that's roughly how I would look at it.

That was Senator Obama on April 14, 2008.  So what does he have to say now?

As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.

The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer.  Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise. I do so with the firm intention -- once I’m sworn in as President -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

But the dealbreaker for the Senator was this:

The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court.

Let's say for a moment that the opponents of eliminating Telecomm Immunity (of which I could myself as one) get what they want.  Wave a magic wand, and POOF!  The FISA Compromise has been stripped of its Immunity provisions, passed the House and Senate Conference, and signed by the President.  What happens next?

Uhhh...Nothing.

The Bush Administration hasn't exactly been introspective, has it?  The odds of them investigating themselves rest somewhere at the intersection of Diddly and Squat.  I'm sure an Inspector General will face no shortage of obstacles as well...at least, until the next President is sworn in.

Besides that, the odds of getting the blue dogs to agree to a stripping of the Immunity are low.  Surviving a Presidential veto is even lower.  (None of this is any reason to back down).

Then there's the possibility of Pardons, but remember what Keith Olbermann said in his Special Comment of June 30th:

And if you ask, Senator, about the President responding to all this by belching out a series of pardons or a blanket pardon to those who broke the law on his behalf, Dean has you covered here, too…

It… “would require acceptance by them of the fact that they had broken the law, and thus be an admission of guilt

“And a blanket pardon would be an admission by Bush that his war on terror has been a lawless undertaking, operating beyond the bounds of the Constitution and statutes that check the powers of the president and the executive branch.

“It would be an admission by Bush, too, of his own criminal culpability (which is why Nixon refused to grant his aides a pardon.

So, best case, Immunity is stripped.  Bush leaves office having done no investigations of himself, but has been able to sign zero pardons, leaving it for the next President to take up the baton.

Worst case, Immunity is granted.  The Civil Lawsuits go away, which is bad, but still Bush leaves office having done no investigations of himself, but signed zero pardons, leaving it for the next President to take up the baton.

Why are we angry, again?

I'm sorry.  Let me rephrase that.  Why are we angry now??

Seems to me that if we're going to get pissed, we're going to get pissed if Obama is sworn in and doesn't pursue this any further.  That could happen.  But what are the odds that the Double-Talk Express, should he be sworn in, will follow through on these investigations?

I remember watching Bubba's Transition in 1992?  He had said throughout the 1992 Campaign that he wanted to end the Army's ban on Gays in the Military.  I think he was serious about it, too.  LGT was a strong constituency for him during the campaign, and there was no reason to let him down.  During a transition presser, he was asked if he was serious.  He repeated that he was, and all of the sudden, the town shut down.  Everything became about Gays in the Military.  The GOP had a field day.  Before he's even sworn in, his whole agenda for the country was on the chopping block.

Do you want Obama to go through the same nightmare?

How much Political Capital is it worth spending when your overall goal of holding the Bush Administration accountable hasn't been taken off the table?

Remember: 

If I found out that there were high officials who knowingly, consciously broke existing laws, engaged in coverups of those crimes with knowledge forefront, then I think a basic principle of our Constitution is nobody above the law.

If a President Obama starts his investigation, the Republicans will dive on the tracks to stop that Train from leaving the station.  They will do everything in their power (if necessary even stopping Iraq Withdrawal funding).  And since there are Democrats involved (Nancy, Harry, Jay Rockefeller for sure), they may not be alone. 

If there's a place that your anger is going to be needed, it's at that moment.  When Obama is sworn in and the Beltway Insiders tell him to forget the investigations.  You've got more important things to do, forget about what President Bush did...or else.  That's when the force of this movement can best be felt.  That's a better use of your anger and your time.  That's the time to shut down the Capitol Switchboard.

There is a time for the FISA fight.

The Fourth Amendment may have gotten beaten up, but it's not dead.  It may have to wear sunglasses for a couple of months, but it's not dead.

Justice delayed may be Justice denied, but better late than never.

My sole issue is, and remains, ending the War in Iraq.  Everything else is a distant second, including this crappy FISA Legislation.

There is a time for the FISA fight. 

It just isn't now.

This article was originally posted at Fort McHenry.