Friday, March 5, 2010

Pro-Civil Liberties "Candidate Obama" vs. Anti-Civil Liberties President Obama

I haven't been shy in sharing my utter disappointment in the Obama Administration when it comes to civil liberties and privacy (and just about everything else too). As I've often stated, the term "better than Bush" has little to no meaning to me, as, what could be worse than Bush when it comes to these issues? Is that really the bar we choose to judge people by these days? If it is, we are in one heap of trouble. When it comes to issues like privacy, we can't start grading on a least not one bent like that.

Now, before I get to a great article in American Prospect entitled Obama, Congress Wink at Massive Surveillance Abuses, I want to go through some of the list of betrayals, backtracking, and reversals by this Administration on substantive issues that the President RAN ON.

The list is getting, literally, too long for me to address these days. So forgive me for reaching back into my archives and getting some help...from myself.

We all know by now the Administration's whole-hearted embrace of Whole-Body-Imaging in airports.

As we also now know, both Obama and Holder have completely reversed themselves on the issue of wiretapping, by not only refusing to prosecute or investigate the program and/or those that carried it out, but have even expanded their defense of the program in some important key respects. Telecom immunity? You bet. Justice for those spied on? Hell no.

We also now KNOW, that it was President Obama himself that worked behind the scenes to ensure that absolutely no meaningful reforms to the Patriot Act were adopted...essentially a complete reversal of his positions as a Senator and Presidential candidate. Strange, he doesn't lift a finger for things like the public option or the Consumer Protection Agency, but man, he's one tough customer when it comes to protecting the Patriot Act.

Its as if we're watching a debate between the eloquent, pro-civil liberties "Candidate Obama" and the just as eloquent, anti-constitutional authoritarian, President Obama.

Senator Obama branded the Patriot Act "shoddy and dangerous" and pledged to end it in 2003. In 2005, he pledged to filibuster a Bush-sponsored bill that included several of these exact components recently extended, calling them "just plain wrong" in a Senate speech. He argued:

"Government has decided to go on a fishing expedition through every personal record or private document -- through library books they've read and phone calls they've made...We don't have to settle for a Patriot Act that sacrifices our liberties or our safety -- we can have one that secures both." It goes without saying, Obama reneged on those pledges.

But now let's hear from President Obama, who wrote in a letter that he was advocating IN FAVOR of the most abusive provisions in the Act to stand...the same ones he claimed were "shoddy and dangerous" as a Senator.

For instance, business and citizens groups can still have their records examined by the government with minimal checks on how the information can be used and more particularly used against. Individuals often based on flimsiest of evidence can still be targeted for monitoring and surveillance if suspected of being a potential terrorist.

Organizations and individuals can still be slapped with so-called roving wiretaps (taps that can be placed on an individual or group anywhere, anytime) again based on weak evidence or unfounded suspicion....

Now President Obama justifies keeping nearly all of Bush's terror war provisions in place with the standard rationale that the government must have all the weapons needed to deal with the threat of terrorism. If you think I'm confusing Bush and Cheney with Obama, sadly, you're wrong.

Then there was the Administration's radical interpretation and use of the "state secrets" privilege to block courts from hearing a host of information, from torture allegations to wiretapping claims. In other words, for the sole purpose of protecting those that committed crimes that the President vehemently criticized as a Senator and promised to address as a candidate.

And finally, for today's purposes anyway, we now know that the Administration is going along - in most respects - with the Bush policies of indefinite detention and military tribunals.

So, forgive me if I'm not surprised by today's article in the American Prospect. Julian Sanchez reports:

Here's how it was supposed to be. Under his administration, candidate Barack Obama explained in 2007, America would abandon the "false choice between the liberties we cherish and the security we provide." There would be "no more National Security Letters to spy on citizens who are not suspected of a crime" because "that is not who we are, and it is not what is necessary to defeat the terrorists." Even after his disappointing vote for the execrable FISA Amendments Act of 2008, which expanded government surveillance power while retroactively immunizing telecoms for their role in George W. Bush's warrantless wiretapping, civil libertarians held out hope that the erstwhile professor of constitutional law would begin to restore some of the checks on government surveillance power that had been demolished in the panicked aftermath of the September 11 attacks.

The serial betrayal of that hope reached its culmination last week, when a Democratic-controlled Congress quietly voted to reauthorize three controversial provisions of the USA Patriot Act without implementing a single one of the additional safeguards that had been under consideration -- among them, more stringent limits on the national security letters (NSLs) Obama had once decried. Worse yet, the vote came on the heels of the revelation, in a blistering inspector general's report, that Obama's Office of Legal Counsel (OLC) had issued a secret opinion, once again granting retroactive immunity for systematic lawbreaking -- and opening the door for the FBI to ignore even the current feeble limits on its power to vacuum up sensitive telecommunications records.


But as a detailed report released last month by the office of the inspector general (OIG) revealed, between 2003 and 2006, the FBI sought to stretch its NSL powers beyond even these ample boundaries. Investigators obtained thousands of records from telecommunications providers using a made-up process called an "exigent letter" -- which essentially promised that a proper NSL would be along shortly. Among those whose records were obtained in this way were reporters for The Washington Post and The New York Times -- in violation of both the law and internal regulations requiring that the attorney general approve such requests.


Following standard practice, the OIG sent a draft copy of its report to the FBI for comment before publication. Understandably distressed by the watchdog's finding that analysts had broken the law repeatedly and systematically over a period of years, FBI attorneys scrambled for retroactive cover. As a heavily redacted section of the report explains, they hatched a novel theory, according to which some broad class of records was actually exempt from the requirements of the ECPA, and therefore eligible to be handed over "voluntarily" by the telecoms. Even in the freewheeling days of the Bush administration, apparently, nobody had come up with this particular rationalization for evading federal privacy statutes -- but it would still serve as a retroactive excuse if Obama's Office of Legal Counsel could be persuaded to bless the new reasoning.

Shamefully, the OLC appears to have done just that in a secret opinion issued in January, just weeks before the publication of the OIG report. While it's impossible to know the precise scope of this novel legal loophole -- sufficiently clever parsing of the statutory definition of "subscriber" or "record" might generate a good deal of wiggle room -- the OIG stressed that this freshly discovered power "has significant policy implications that need to be considered by the FBI, the Department, and the Congress." It was a page straight from the John Yoo playbook: When intelligence agencies are discovered to have broken the law, simply reinterpret the law!

Click here to be increasingly disturbed.

Frankly, I'm running out of words and ways to express the degree of my discontent. Not just with this Administration of course, but with the increasing public acceptance, or at least apathy, when it comes to issues related to privacy and the constitution. It just feels like the slap in the face is a bit harder when it comes from a supposed "liberal" Constitutional Law professor.

I understand the pressures and powers (actually, probably don't fully) that must be at play once President. The military industrial complex, the intelligence community, the constant fearmongering from the right wing, and a corporate media that covers everything in a black and white, distorted haze, must represent a source of incredible pressure to "play the game". And that means, continue to abuse power.

As I used to write back in the dark days of the Bush Administration, just because a new President was coming into power, that by no means meant that ANY POWERS Bush first abused then claimed as his right, would be given up. As we know, its much more difficult to give up power once it has been given. And boy are we seeing that now...

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