If only the Senate could hold off voting on the FISA Capitulation Bill until after November, there might be hope.  But the vote will today, and the bill will pass according to all reports.  The New York Times editorial board has come out against the bill, which is usually the kiss of death. 

This is the bill that was touted as a compromise by Congressmen for whom words have no actual meaning, and will free the telecoms from liability for breaking the law at the behest of an executive branch that broke the law.  And that, more than anything, tells us what our government’s priorities are.

Bob Egelko at the San Francisco Chronicle writes about the corrosive affect of politics on this bill, and how our two presidential candidates have both taken the low road to the White House by shifting their positions to appeal to the masses.

Mr. Obama first: 

Obama has been an outspoken critic of the surveillance program for more than two years, and voted against the confirmation of its director, Michael Hayden, to head the CIA in 2006.

“No more illegal wiretapping of American citizens. … No more ignoring the law when it is inconvenient,” the Illinois senator declared in August 2007.

Obama has been particularly adamant against Bush’s insistence on protecting phone companies from lawsuits.  “No one should get a free pass to violate the basic civil liberties of the American people – not the president of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program,” Obama said in January. He backed legislation that would have barred immunity for the companies, and says he will support an immunity-stripping amendment to the bill this week.

Obama promised to filibuster the bill should it come to a vote on the Senate floor.  But that was when he had more time on his hands.  He’s busier now, and barely has the time to show up in Washington to yell “aye”.

While less than perfect, Obama said, the bill would require some judicial review of surveillance orders and an audit by the Justice Department’s inspector general within a year – bringing to an end, he declared, “the president’s illegal program.”

As president, Obama said, he would monitor the surveillance program carefully and take any necessary steps – which he didn’t define – “to protect the lives and the liberty of the American people.” And he said he would support the bill even if it immunized telecommunications companies, explaining that the issue “is not one that overrides the security interests of the American people.”

Note that Obama is busily fighting to prove he can be commander in chief and protect the American people.  Plus, if he wins, then he gets to pull the trigger on illegal wiretapping, which is completely different than if a bad president has control.  Get it?

And what does Senator McCain have to say about this?

In December, McCain was asked by the Boston Globe whether Bush had to comply with the 1978 law requiring warrants for surveillance of suspected terrorists. “I don’t think the president has the right to disobey any law,” he replied.

A month earlier, McCain told Cnet that companies that provide Americans’ records to the government without legal orders “undermine our respect for the law” and should be granted immunity only if Congress holds hearings to determine what went wrong.

Aside from the fuzziness of the Cnet statement (it’s okay to ignore crimes if Congress holds hearings?) which suggests a Washington mentality that should scare the pants off of anyone who would expect a President who grasps the crime-consequence continuum, at least McCain understood that even presidents don’t get to break the law with impunity.  But that was then.  What about now?

In the campaign’s most recent statement, spokesman Tucker Bounds said June 6 that McCain still believes the president must follow the law – but that in this case, Bush did so.

A number of courts, Bounds asserted, “have recognized the president’s constitutional authority to conduct warrantless surveillance for foreign intelligence purposes.”

Most of those rulings, however, were unrelated to the current surveillance program. Although legal scholars aren’t unanimous, most who have spoken on the subject have concluded that Congress’ 1978 requirement of court approval for wiretaps related to terrorism or espionage overrode any power the president had to order wiretapping on his own.

The new McCain position is that the “commander in chief during wartime,” has the power “to override the law.”  Aside from the accuracy of this position, remembering how well the Gulf of Tonkin resolution worked out, our government seems to be in a state of announced yet undeclared war against something or someone at all times. 

This epiphany follows harsh criticism from the rightest of the right wing.

His comments drew conservative criticism, most prominently from Andrew McCarthy of the Foundation for Defense of Democracies, who described McCain as wishy-washy on surveillance in online articles for National Review magazine.

Andy was a great guy to fight against when he was a SDNY assistant, but I’m not sure I would look to him as a political arbiter.  He’s a bit extreme these days.

I would have thought that the “freedom isn’t free” crowd would have stood down after having its way for 8 years under President Bush.  It seemed that things hadn’t worked out too well, and perhaps they would reconsider (I was going to use the word “rethink” but that would have required thought in the first instance) their position.  But Obama’s shift toward ideological necromancy, and McCain’s attempt to become “typical” suggest that they believe that they cannot attain the presidency unless they sell their souls.  I’m sure they have polls to prove it.

Granted, McCain’s position is a far less dramatic turn-around than Obama’s, whose campaign is comprised of one word, “Change”.  I’m finally beginning to understand why this one word best characterizes Senator Obama’s politics. 

But fear not.  Even though laws may be broken by telecoms and the executive, you and I will still be held accountable.  The government hasn’t gone that crazy.