Here’s a nice FindLaw analysis piece by John Dean that explains the Obama/FISA issue pretty well. Dean puts things in a perspective we’re not hearing because of the “Obama is flip-flopping” drum currently beating in the blogosphere. Dean’s main points are (a) that the FISA amendments contain no criminal immunity and (b) that Obama has stated in so many words that he will direct his attorney general to explore how serious (i.e., clearly criminal) Bush administration malfeasance has been in terms of wiretaps and such.
“I have taken a closer look at the House-passed FISA bill and tracked its legislative history,” he begins. “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, [and] the ACLU agrees that there is no criminal immunity. 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.
“Because this legislation addresses only civil liability, Senator Obama has a unique opportunity to show that his leadership as President would, in fact, bring a change to Washington. Indeed, he can both support the amendments now pending (for the reasons he stated), and make clear that as President he will request that his attorney general determine if criminal actions should be taken for the blatant violations of the criminal law. Actually, he has already said this, but in a larger context.
“Since Obama aas already declared that he will hold the Bush administration officials responsible for their crimes, he can now have it both ways: Support the FISA Amendments and Hold Miscreants Responsible
“During the primaries, Senator Obama stated that, as President, he would not give his predecessors a pass for their crimes, which has recently become the informal custom. Obama was asked about this matter by a seasoned political reporter for the Philadelphia Daily News, Will Bunch.
“Bunch wanted to know from Obama whether his administration’s Justice Department “would aggressively go after and investigate whether crimes have been committed” by the Bush Administration. The discussion arose in the context of the uses of torture and other illegal means to fight terrorism, but Obama’s response was general and unequivocal. Bunch reported that Obama said:
“‘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 cover-ups of those crimes with knowledge [aforethought], then I think a basic principle of our Constitution is nobody is above the law — and I think that’s roughly how I would look at it.’
“If Obama is a man of his word,” Dean concludes, “he should place Bush officials and the telecommunications companies on notice of the action he will take as President.”