Outrage at Obama is Justified

Larry Lessig calls the outrage at Obama's flip-flop over the FISA bill leftist hysteria. He's wrong.

Whatever else one might think about the FISA bill, the outrage over retroactive immunity for the telcos is not a leftist issue. It is a litmus test for whether or not you believe in the rule of law. Central to the very concept of civilization is the idea that there is a set of rules that you play by, and implicit in this is that everyone has to know what those rules are. Retroactive immunity sets a very dangerous precedent. It says that as long as you have enough friends in Congress you are no longer expected to play by the rules.

Of course, if you have enough friends in Congress you can get the rules changed in your favor anyway. But there's a huge difference between getting the rules changed up front and having them changed to your benefit after the fact: if you have enough power and influence to do the latter then you can break the rules while everyone else still has to follow them. Only if you get caught do you have to go on the record as having used your influence to unfair advantage. God only knows how many laws that Bush administration and their cronies have broken secure in the knowledge that if some snoopy reporter discovers the transgression they can just strongarm Congress to give them a free pass. (And if that fails, there are always presidential pardons to fall back on.)

It is not for nothing that the Constitution prohibits ex post facto laws.

I am outraged at Obama because he specifically promised to filibuster any bill that included retroactive immunity. That was an implicit promise to stand up for the rule of law no matter the cost. He reneged on that promise. This may well have been politically justifiable, even shrewd, but the larger message is that Obama is not a man of his word, and he is not a man of principle. He is just another politician who will do or say anything to get elected.

But even that is not the worst part. The worst part is that now we have no one (except, perhaps, Ron Paul) who is willing to stand up against the overarching trend in American politics today, which is that national security trumps everything, including the Constitution and the rule of law. Down that road lies tyranny, and Obama stood by and did nothing while the Senate steered us down that path. That is well worth getting outraged over.