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May 31 2012

Obama Wants to Extend Bill He Promised to Filibuster

This will come as a shock to no one who has been paying attention. Glenn Greenwald reports that the Obama administration is seeking quick and uncontroversial passage of a bill extending the FISA amendments passed in 2008, a bill he originally promised to filibuster and then dutifully voted for.

Even though multiple federal judges eventually ruled the program illegal, that scandal generated no accountability of any kind for two reasons: (1) federal courts ultimately accepted the arguments of the Bush and Obama DOJs that the legality of Bush’s domestic spying program should not be judicially reviewed; and (2) the Democratic-led Congress, in 2008, enacted the Bush-designed FISA Amendments Act, which not only retroactively immunized the nation’s telecom giants for their illegal participation in that spying program and thus terminated pending lawsuits, but worse, also legalized the vast bulk of the Bush spying program by vesting vast new powers in the U.S. Government to eavesdrop without warrants (in his memoir, President Bush gleefully recounted that the 2008 eavesdropping bill supported by the Democrats gave him more than he ever expected).

It was then-Sen. Obama’s vote in favor of the FISA Amendments Act that caused the first serious Election Year rift between him and his own supporters. Obama’s vote in favor of the bill was so controversial for two independent reasons: (1) when he was seeking the Democratic nomination only a few months earlier and needed the support of the progressive base, Obama unequivocally vowed to filibuster “any bill that includes retroactive immunity for telecommunications companies,” only to turn around once he had secured the nomination and not only vote against a filibuster of that bill but then vote in favor of the bill itself; and (2) the bill itself legalized vast new powers of warrantless eavesdropping: powers which the Democratic Party (and Obama) had spent years denouncing (as Yale Law Professor Jack Balkin put it at the time: “Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”). When Obama announced his reversal, his defenders insisted he was only doing it so that he could win the election and then use his power as President to stop warrantless eavesdropping abuses, while Obama himself claimed he voted for the FISA bill “with the firm intention — once I’m sworn in as President — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”

The only positive aspect of the FISA Amendments Act of 2008 was that Congress imposed a four-year sunset provision on the new warrantless eavesdropping powers it authorized. That sunset provision is set to expire and — surprise, surprise — the Obama administration, just like it did for the Patriot Act, is demanding its full-scale renewal without a single change or reform.

And he offers some of the many reasons to object to it:

First, even Senators on the Intelligence Committee — such as Democrats Ron Wyden and Mark Udall — have made repeatedly clear that there are basic facts about how this law affects the communications of ordinary Americans which even they have not been provided, including even a rough estimate of how many Americans have had their emails read or calls listened to by the NSA under this law.

Second, the Director of National Intelligence, in response to the inquiries from those two Senators, has claimed that “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the [FISA Amendments Act].”Note that he cannot even identify the number of Americans whose communications have been actually “reviewed,” not merely stored, by the NSA (The Washington Post previously reported that “every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications”). How can Congress even think about renewing these warrantless eavesdropping powers when even the members on the Intelligence Committee are deprived of the most basic information about how they are used and how many Americans have their communications invaded without warrants? …

Fourth, and perhaps worst of all, the Obama administration is aggressively seeking to block any efforts to have federal courts rule on the constitutionality of this new FISA law. Immediately after its 2008 passage, the ACLU, on behalf of journalists, activists, and writers, sued to invalidate the law on the ground that it violates the Fourth Amendment rights of Americans by subjecting them to warrantless eavesdropping. As they always do in such cases, the Bush and Obama DOJs demanded dismissal of the suit on the ground of “standing”: namely, they asserted the definitively Kafkaesque claim that because the list of Americans who have their conversations intercepted is kept secret, the plaintiffs cannot prove they were eavesdropped on under the law, and thus lack “standing” to challenge it.

This warped argument — along with the “state secrets” privilege — is the one that the DOJ has most frequently invoked to place their War on Terror conduct beyond the reach of the rule of law. But in the ACLU lawsuit, something unusual happened: a federal appeals court panel refused to dismiss the ACLU’s lawsuit on this ground, holding that the plaintiffs’ reasonable fear that they would be subject to the warrantless eavesdropping powers conferred “standing” entitling them to challenge the law. The full Second Circuit Court of Appeals (by a 6-6 vote) refused to reverse that ruling, creating an important precedent that would allow citizens to challenge an unconstitutional law even when the Government’s secrecy prevents them from proving that they were personally subjected to it (it was this Second Circuit precedent that a federal judge recently relied upon in ruling that various writers and journalists could challenge the constitutionality of the NDAA even though they were not yet indefinitely detained under it, and after finding standing on that basis, she then halted use of the NDAA’s detention powers on the ground that it is likely unconstitutional).

But rather than let that ACLU standing precedent remain — and then proceed to defend the constitutionality of the 2008 eavesdropping law on the merits — the Obama DOJ urged the Supreme Court to review and overturn the Second Circuit’s ruling. This week, the Supreme Court announced it was accepting this case for review, and many legal experts believe they would not have agreed to review the ACLU ruling unless they intended to overturn it. So as the Obama administration pressures Congress to renew this eavesdropping law without a single reform, they simultaneously act to block courts even from ruling whether the law is constitutional. And in the process, they threaten to obliterate one of the very few judicial precedents that results in government leaders being subjected to minimal accountability under the law for their secret behavior.

Fifth, the Obama administration has perfectly adopted the standard tactic used by Bush officials to coerce approval of any surveillance power they want and to smear anyone questioning those powers. Namely, they insist that the Terrorists will get us all if they do not get their way, and that anyone opposing their demands will have the blood of Americans on their hands. Recall Harry Reid’s attacks on those urging reforms to the Patriot Act last year (“‘When the clock strikes midnight tomorrow, we will be giving terrorists the opportunity to plot against our country undetected,’ Reid said, referring to the law’s expiration this week. ‘The senator from Kentucky is threatening to take away the best tools we have for stopping them’”). Similarly, Holder and Clapper warn that rapid, reform-free extension of their eavesdropping powers is necessary “to avoid any interruption in our use of these authorities to protect the American people”: because, apparently, just like Bush officials insisted, it’s impossible to Keep America Safe if you first have to obtain warrants before eavesdropping on them.

Just more of the same.

14 comments

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  1. 1
    Gregory in Seattle

    The more things change you can believe in, the more things stay the same.

  2. 2
    NoVaRunner

    Just another verification of NoVaRunner’s First Law of Presidential Power: “A President will never take an action that would diminish the power of his office, and will always take an action that will increase it.”

  3. 3
    Eric R

    So which repugnican will we vote for this year? the incumbant or the challenger?

  4. 4
    Bronze Dog

    It’s things like FISA, the Patriot Act, and abuse of the States Secrets Privilege that signal we’ve already lost the real war on terror. The terrorists don’t even have to do anything, anymore, because we’ve got plenty of politicians and media pundits who keep fueling the fire.

  5. 5
    baal

    The oligarchs like centralized unlimited power. They feel that they can puppet any human who are in those loci. Obama’s only saving grace is that he seems to want the county to at least modestly function. I don’t see even that meager goal from the (R).

    It does leave me with wondering how to reverse trends where the harms are diffuse but the gains are localized. (cf pollution) The political will of the polity is just not there absent a burning river or iron clad evidence that the staz fedgov keeps a file on you personally.

  6. 6
    Homo Straminus

    Odds BODkins but I dislike this man more every day, it seems.

    One of the biggest things I don’t understand in the current political climate is this: I will on occasion try to mosey over to conservative blogs that are well-respected, at least from what I can tell (as opposed to Ed’s gleeful playing in crazytowns). And sure enough, every other post seems to be some kind of criticism of Obama. But they’re all for terrible reasons. I cannot think of a single conservative who rails against Obama as consistently and substantively as Glenn Greenwald. Instead they make fun of speaking gaffes, or criticize Michelle, or various dumb (but perfectly regular!) things like visiting the troops overseas.

    Why can’t they call him out on the big stuff? Am I somehow missing a huge swath of critical thinking on the other side? Or is what I’m seeing what really counts as respected conservative criticism these days?

  7. 7
    Daniel Fincke

    You know, I’m so bad with dates. What year was it again that we repealed the fourth amendment?

  8. 8
    jayhawk

    If you forget the speeches and the rhetoric, but only look at what Senator Obama actually voted for and what President Obama and Governor Romney actually signed or vetoed, which one has the more liberal record. Romney was liberal in Massachusetts. Obama has been anti-civil rights.

    I am running out of reasons to rationalize a vote for Obama. I have never really believed a candidate could lose their base by pandering to the middle, but to completely turn your back on your base is another story completely. I can actually see an argument now that Romney would be less harmful because he would be a worse President, thus would do less damage that Obama is doing (yes, I am only partially serious).

  9. 9
    jayhawk

    I meant he would be ineffective instead of worse in the last sentence.

  10. 10
    slc1

    Re jayhawk @ #8

    Why is Obama better then a Rethuglican? Four words: Alito and Roberts vs Sotomayor and Kagan. Nuff said.

  11. 11
    Modusoperandi

    Homo Straminus “Why can’t they call him out on the big stuff? Am I somehow missing a huge swath of critical thinking on the other side? Or is what I’m seeing what really counts as respected conservative criticism these days?”
    Because they’re for the big stuff. They couldn’t even stay mad about him deciding that it was okay to off American citizens without trial.
    Heck, lookin’ into his deep, brown eyes, even I can’t even stay mad about it.

    jayhawk “Romney was liberal in Massachusetts. Obama has been anti-civil rights.”
    The critical word is “was”. Romney’s fallen in with a bad crowd. He hired an assistant to wear a leather jacket for him and everything!

  12. 12
    Ichthyic

    They feel know that they can puppet any sufficient humans who are in those loci.

    ftfy

    and, they know from long, long experience.

    I am running out of reasons to rationalize a vote for Obama. I have never really believed a candidate could lose their base by pandering to the middle, but to completely turn your back on your base is another story completely.

    since we’re looking at a Greenwald article, here’s another from him that explains exactly why Obama can feel politically justified in throwing the progressive base under the bus:

    http://politics.salon.com/2011/04/13/obama_147/singleton/

    that article really opened my eyes.

  13. 13
    John Phillips, FCD

    Ichthyic, I also came to Greenwald’s realisation quite some time ago. For when he wants to, he appears to be able to use the bully pulpit very effectively. Thus, like on his weak health care act, he is obviously relatively happy with the way things are going. Therefore, if I was a US voter, I would vote for him in November, but it would while holding my nose and only because the alternative now is so much worse. It’s a shame, but even on this side of the pond, I have to really wrack my brain to remember the last time I enthusiastically voted for somone, rather than for the lesser of two or more evils.

  14. 14
    Chris from Europe

    @jayhawk
    Romney didn’t have the choice not to appear liberal, but he wasn’t. His HCR was written by the Heritage Foundation and was meant to counter liberal reform ideas. And then you could read about how got more and more conservative as the end of the term approached and he shifted his attention to running on the Federal level.

    I think it’s still easy: Romney is consistently worse than Obama. If you are unhappy with Obama, I can’t understand why the guy appeals to you. The only thing is that he would probably be less effective, except in cementing conservative dominance at appointed positions.

  1. 15
    Patheos question: For whom will you vote?

    [...] that did precisely that. Then, when it was challenged, he wanted it dismissed. Later, the President supported its extension.Before his 2008 election Obama talked about putting an end to torture, yet he the DoJ under Obama [...]

  2. 16
    Campaign promises that will certainly be broken. » King High

    [...] Obama said he would “filibuster of any bill that includes retroactive immunity for telecommunications companies”, and then he supported the FISA bill extension that did precisely that. Then, when it was challenged, he wanted it dismissed. Later, the President supported its extension. [...]

  3. 17
    New bill could give law enforcement access to your emails.

    [...] that.  Then, when it was challenged, he wanted the challenge dismissed. Later, the President supported the bill’s extension.  In the case of Obama this is even more unforgivable since he is a Constitutional scholar, and [...]

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