Tuesday, December 16, 2008

Has Big Brother Won? Obama's Wiretapping Challenge

I thought this New York Times op-ed on the difficulty that the Bush administrations extensive and illegal wiretapping and surveillance program poses Obama to be a useful precursor in understanding what's ahead for the next President on this most critical of issues.

Throughout the past years one of the arguments I made incessantly here was that once a President is given new and far reaching powers, its very hard for future President's to give those powers up. I would say that's a very human characteristic in fact...but when it comes to our civil liberties and right to privacy, its a human characteristic that should be avoided.

One of the key legacies of the Bush era will be more than the abuse of power by the Executive, but it will be the way in which "the law" no longer seems to even apply to it...and certainly not in any way close to equal to the rest of us. A point Glenn Greenwald of Salon.com recently made I though was especially salient in this regard.

He pointed out that to eavesdrop on a fellow American citizen is a felony offense punishable by five years in prison or a $10,000 fine if done without warrants. "We have laws in place that say that it is a felony punishable by decades in prison to subject detainees in our custody to treatment that violates the Geneva Conventions or that is inhumane or coercive. We know that the president and his top aides have violated these laws. The facts are indisputable that they’ve done so. And yet as a country, as a political class, we’re deciding basically in unison that the president and our highest political officials are free to break the most serious laws that we have, that our citizens have enacted, with complete impunity, without consequences, without being held accountable under the law.

So with that grave and ominous backdrop to the opportunity and challenges awaiting a President Obama, let's get to Patrick Radden Keeke's analysis in today's NYT's:

After a contentious hearing this month on the most controversial aspect of the new law — a blanket grant of immunity to the telecom giants like AT&T that secretly permitted the N.S.A. to siphon off their customers’ communications — a federal judge in San Francisco must decide whether Congress has the authority to bestow absolution on private companies that appear to have violated the law. One paradox is that Bush administration lawyers have claimed from the outset that the surveillance program was entirely legal, yet they remain desperate to prevent any court from testing that claim. Instead, they are in the odd position of advocating immunity for something that they insist is not a crime.

Another paradox, which Barack Obama surely appreciates, is that the real issue underlying the immunity debate is not whether the telecoms should pay damages; it is whether lawsuits against the companies can be used to answer a question that Congress and the press have not: Just how bad was the N.S.A. program, after all?

Mr. Obama says he does not want his first term to become bogged down in any sort of “partisan witch hunt.” Indeed, the sheer extent of executive lawlessness in Washington over the past eight years has left so many wrongs to right that, in the interests of triage, the new president may choose to let bygones be bygones where wiretapping is concerned. But that would be a mistake.


The Obama administration cannot enact the kind of thorough course correction on domestic surveillance that is needed without understanding how far off course the intelligence community got in the first place. Mr. Obama, who initially vowed to filibuster the immunity provision but, under pressure in the race against John McCain, backed down and reluctantly supported it, has committed “to have my attorney general conduct a comprehensive review” of N.S.A. surveillance.

That is a promising first step, but it is not enough. Nor is the prospect of reports due next summer from the inspectors general of the N.S.A. and the Justice Department. The good news for Mr. Obama, politically, is that the executive branch should not lead the charge in investigating the wiretapping. Congress should.


Without some baseline understanding of what went wrong — and how wrong — in recent years, and without the establishment of some bright line rules of the road, it would be na├»ve to think that there won’t be future abuses. For aggressive intelligence agencies, legal ambiguity is an invitation to excess. Wiretapping can sometimes seem forbiddingly complex, and many Americans just aren’t concerned that the government might monitor their calls. But what is at stake here is not mere personal privacy, but the bedrock American principles of separation of powers and the rule of law.

You can be sure I will be following and covering how this issue unfolds in the coming months and years. Click here to read more.

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