Cass Sunstein, right, and Glenn Greenwald on FISA

We host a discussion with Cass Sunstein, an informal adviser to Barack Obama and an outgoing University of Chicago Law School professor who has been described as “the nation’s most-cited legal scholar,” and Glenn Greenwald, a former constitutional law attorney and political and legal blogger for Salon.com. The two debate issues ranging from the FISA bill to Obama’s refusal to support calls for the prosecution of President Bush and top White House officials for war crimes and other abuses of power.

AMY GOODMAN: The dominant role of corporations is one of a number of issues fueling skepticism around the 2008 campaign. Criticism has also mounted recently over presumptive Democratic nominee Barack Obama’s perceived shift to the right.

In an apparent reversal, Obama backed a new bill authorizing the Bush administration’s domestic spy program and granting immunity for the telecom companies that took part. He also supported a Supreme Court decision to overturn a D.C. handgun ban. On foreign policy, Obama said he’d be open to revise his pledge to withdraw US troops from Iraq and also called for a major increase to the size of the US occupation of Afghanistan. And like all top Democratic leaders, Obama has refused to support calls for the prosecution of President Bush and top White House officials for war crimes and other abuses of power.

The criticism of Obama’s stances has come as part of a larger debate over whether efforts to hold the Bush administration accountable would jeopardize an ostensibly higher goal of ensuring a Democratic win this November.

I’m joined right now, in addition to Glenn Greenwald, who blogs at Salon.com, the legal scholar—he’s speaking to us from Brazil on the phone—by Cass Sunstein, who’s an informal adviser to Barack Obama, professor at Harvard University and the University of Chicago Law School. He is co-author of the book Nudge: Improving Decisions About Health, Wealth, and Happiness and is cited as one of the most-cited legal scholars in the country.

Cass Sunstein, your response to those who talk about—particularly concerned about Barack Obama, for example, shifting on the FISA bill, saying he would filibuster and now actually voting for the bill that granting retroactive immunity to the telecoms. You spoke about this at the Netroots conference this weekend—Netroots Nation.

CASS SUNSTEIN: Yes, I think it’s—this is widely misunderstood. What the bill isn’t is basically a bill that—whose fundamental purpose is to give immunity. It’s a bill that creates a range of new safeguards to protect privacy, to ensure judicial supervision, to give a role for the inspector general. So it actually gives privacy and civil liberties a big boost over the previous arrangement.

It also does contain an immunity provision, which Senator Obama opposed. He voted for the substitute bill that didn’t have that. But he thought that this was a compromise which had safeguards for going forward, which made it worth supporting on balance, compared to the alternative, which was the status quo. So there’s been no fundamental switch for him. He’s basically concerned with protecting privacy. And this is not his favorite bill, but it’s a lot better than what the Bush administration had before, which was close to free reign.

AMY GOODMAN: Glenn Greenwald, you’ve written a lot about this, as well.

GLENN GREENWALD: Well, you know, it’s one thing to defend Senator Obama and to support his candidacy, as I do. It’s another thing to just make factually false claims in order to justify or rationalize anything that he does.

The idea that this wasn’t a reversal is just insultingly false. Back in December, Senator Obama was asked, “What is your position on Senator Dodd’s pledge to filibuster a bill that contains retroactive immunity?” And at first, Senator Obama issued an equivocal statement, and there were demands that he issue a clearer statement. His campaign spokesman said—and I quote—“Senator Obama will support a filibuster of any bill that contains retroactive immunity”—“any bill that contains retroactive immunity.” The bill before the Senate two weeks ago contained retroactive immunity, by everybody’s account, and yet not only did Senator Obama not adhere to his pledge to support a filibuster of that bill, he voted for closure on the bill, which is the opposite of a filibuster. It’s what enables a vote to occur. And then he voted for the underlying bill itself. So it’s a complete betrayal of the very unequivocal commitment that he made not more than six months ago in response to people who wanted to know his position on this issue in order to decide whether or not to vote for him. That’s number one.

Number two, the idea that this bill is an improvement on civil liberties is equally insulting in terms of how false it is. This is a bill demanded by George Bush and Dick Cheney and opposed by civil libertarians across the board. ACLU is suing. The EFF is vigorously opposed. Russ Feingold and Chris Dodd, the civil libertarians in the Senate, are vehemently opposed to it; they say it’s an evisceration of the Fourth Amendment. The idea that George Bush and Dick Cheney would demand a bill that’s an improvement on civil liberties and judicial oversight is just absurd. This bill vests vast new categories of illegal and/or unconstitutional and warrantless surveillance powers in the President to spy on Americans’ communications without warrants. If you want to say that that’s necessary for the terrorist threat, one should say that. But to say that it’s an improvement on civil liberties is just propaganda.

AMY GOODMAN: Cass Sunstein?

CASS SUNSTEIN: Well, I appreciate the passion behind that statement. I don’t see it that way. And Morton Halperin, who’s been one of the most aggressive advocates of privacy protections in the last decades, is an enthusiastic supporter of this bill on exactly the ground that I gave. My reading of it, just as a legal matter, is that it ensures exclusivity of the FISA procedure, which the Bush administration strongly resisted, it creates supervision both on the part of the inspector general and the legal system, which the Bush administration had said did not exist previously. So the view that this is an improvement over the Bush administration status quo, I believe, is widely accepted by those who have studied the bill with care.

I do appreciate the concern about retroactive immunity. Senator Obama did oppose that, voted for the opposing bill. But I don’t share the extreme negativity about this compromise that the speaker endorses.

AMY GOODMAN: Glenn Greenwald?

GLENN GREENWALD: Well, again, Senator Obama made a promise and then betrayed it. The idea that the bill is an improvement on civil liberties, like I said, is demonstrated by the fact that all civil libertarians, virtually across the board, vigorously oppose it and are suing over it. And I think—

AMY GOODMAN: Glenn Greenwald, let me move on to another issue, and that is the issue of holding Bush administration officials accountable. This is also an issue, Professor Sunstein, that you addressed this weekend in Austin at the Netroots Nation conference. And on Friday, the House Judiciary Chair John Conyers is going to be holding a hearing around the issue of impeachment, with those for and against impeachment speaking through the day. Your assessment of the whole movement and your thoughts on this, Cass Sunstein?

CASS SUNSTEIN: Well, I speak just for myself and not for Senator Obama on this, but my view is that impeachment is a remedy of last resort, that the consequences of an impeachment process, a serious one now, would be to divide the country in a way that is probably not very helpful. It would result in the presidency of Vice President Cheney, which many people enthusiastic about impeachment probably aren’t that excited about. I think it has an understandable motivation, but I don’t think it’s appropriate at this stage to attempt to impeach two presidents consecutively.

In terms of holding Bush administration officials accountable for illegality, any crime has to be taken quite seriously. We want to make sure there’s a process for investigating and opening up past wrongdoing in a way that doesn’t even have the appearance of partisan retribution. So I’m sure an Obama administration will be very careful both not to turn a blind eye to illegality in the past and to institute a process that has guarantees of independence, so that there isn’t a sense of the kind of retribution we’ve seen at some points in the last decade or two that’s not healthy.