To be clear, I do hope he wins, and I will vote for him. I hope he finds a way to win back my endorsement. However, I simply cannot actively support him after his vote on FISA.
Kudos to Obama for his artfully penned response to the gigantic groundswell of outrage, but this is something that leaves me profoundly disappointed. FISA was an unnecessary, rotten, law to begin with, and this law takes it from rotten to putrid.
Let me put it this way. Say you are an FBI agent, and you are working on a case. You think you need a wiretap ASAP. If you don't feel that the case is compelling enough to wake a judge up at 4 AM to get her to sign a warrant for your wiretap, then the agency probably shouldn't waste its time and resources pursuing the case.
The whole reason for requiring warrants to search and seize property is to focus law enforcement on compelling cases. The system is designed to weed out speculative and frivolous investigations, and investigations for improper purposes (political intimidation, for example). The administrative burdens placed on law enforcement are SUPPOSED to be burdensome. Sure, we should feel sympathy for the plodding investigator as he navigates through the red tape. But we should also recognize that the hassle he must undergo is a sort of administrative calisthenics. It makes for more thorough investigations, more accountable practices, and more successful prosecution.
If we want to help our hypothetical plodding investigator, we shouldn't make his job simpler. We should give him more material resources. Worried about not getting warrants quickly enough? How about expanded staffing to process warrants? Better IT infrastructure to handle the process faster and more efficiently? Or heck, why not just set aside office space for judges nearby the operations center? Processing warrants is one of the key duties of serving on the bench, and in my experience, judges generally take all parts of their jobs very seriously.
Even if we grant, for a moment, the ridiculous "ticking bomb" scenario that seems to motivate all conservative thinking on domestic security, special legal "tools" like FISA are still totally unnecessary. Terrorism cases are not unique in the urgency with which they must be pursued, or in the scope they must cover, or in the potential number of victims. Ordinary homicide investigations can be just as urgent; racketeering and organized crime cases can be just as broad in scope; environmental cases can involve just as many victims. Terrorism is unique only in the sense that it can potentially combine these aspects. Terrorism cases are bound to be complex and difficult, but the difficulties have nothing to do with complying with appropriate judicial oversight. Any competent homicide detective knows how to obtain a warrant when she needs one in a big hurry. The FBI organized crime people know how to obtain warrants for complex investigations. Investigators who handle environmental cases often use the potential for mass casualties to obtain authorization to conduct wide-ranging investigations. Terrorism investigators need to do all those things at once, and so they need low caseloads, a lot of very competent support staff and a well-run computer network.
As with any other class of investigation, we should not expect better results by relaxing judicial oversight, or in the case of the new FISA law, no oversight whatsoever. Quite the contrary. Exception from the fourth amendment allows more latitude for sloppy work, but won't help an honest cop catch any bad guys. What conservatives are really asking for when they rail against judicial oversight is that they don't want honest cops; they want Gestapo.
Naturally, conservatives don't want the EPA or the Forrest Service to have expanded investigative or enforcement powers. Extra-constitutional intrusions into the private lives of Americans are evidently reserved for manly things. For girly things, like protecting spotted owls from logging companies and children from arsenic poisoning, conservatives never fail to come out in favor of judicial micromanagement. This works in concert with their habit of appointing industry lobbyists to the judiciary.
What angers me about Obama's position (and the Democratic leadership) here is that they conceded a fundamental philosophical point to the GOP. They are granting that security theater is more important than the law. Not only that, but in the same stroke, they endorsed the criminal behavior of the people involved in what is probably the largest and most serious breach of the fourth amendment in our history. I cannot abide it.
I will vote for Barack Obama, but I'm not going to endorse him, or give him any more money. Instead, I encourage you to contribute to the Electronic Frontier Foundation.