Wednesday, April 08, 2009

Obama and NSA Surveillance

Regarding the Obama administration's decision to assert over-reaching legal theories so as to shield the government from accountability for the NSA warrantless wiretapping programs, Glenn Greenwald praises Keith Olbermann for focusing on this issue and eviscerating the Obama administration in the process:

Last night, Keith Olbermann -- who has undoubtedly been one of the most swooning and often-uncritical admirers of Barack Obama of anyone in the country (behavior for which I rather harshly criticized him in the past) -- devoted the first two segments of his show to emphatically lambasting Obama and Eric Holder's DOJ for the story I wrote about on Monday: namely, the Obama administration's use of the radical Bush/Cheney state secrets doctrine and -- worse still -- a brand new claim of "sovereign immunity" to insist that courts lack the authority to decide whether the Bush administration broke the law in illegally spying on Americans.

Greenwald goes on to praise the attention liberal blogs have paid to the issue as well, and then says this:

This is quite encouraging but should not be surprising. As much as anything else, what fueled the extreme hostility towards the Bush/Cheney administration were their imperious and radical efforts to place themselves behind an impenetrable wall of secrecy and above and beyond the rule of law. It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.

Over the last several years, nothing stoked opposition to the Bush administration among civil libertarians moreso than the issue of warrantless wiretapping, indefinite detention, extraordinary rendition and detainee abuse and torture. This unholy alliance of government wrongdoing prods the darkest fears of civil libertarians, who envision a government that looses itself from the rule of law so as to hide criminality or incompetence, or uses the threat of terrorism to further its own political authority and agenda. If anything, the hypocritical decision of the Obama administration to continue to offer these Bush era legal arguments to protect itself from judicial oversight is even more enraging than what the Bush administration did, as Obama personally pledged his administration to greater government transparency and oversight. I think Olbermann speaks for us all when he lambasts the Obama administration for this approach:

About that sovereign immunity argument, the Electronic Frontier Foundation has this to say:'s the Department Of Justice's second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

It's hard to explain how incredible this legal argument is. I recommend Orin Kerr for an explanation of the law at play here, but essentially, the Obama administration is arguing that sovereign immunity shields the government from accountability for willful violations of the law even when the law explicitly grants a remedy for such violations. They twist the plain meaning of the statutes to arrive at the conclusion that even when Congress explicitly waives sovereign immunity (as it possesses the authority to do) the executive may still claim it, at least in matters of domestic surveillance and wiretapping. As Tim Jones at the EFF notes, the Bush administration made this claim only in regards to FISA. The Obama administration goes above and beyond to make it against three different acts of Congress that control surveillance and wiretapping. They are nothing if not ambitious.

Now if that doesn't piss you off, I don't know what will. No one who follows politics for any length of time should be so naive as to think that politicians always keep their promises and never act out of blatant self-interest, so that the Obama administration is engaging in shenanigans I and other liberals and civil libertarians don't approve of should come as no real surprise. But to not only continue to make the same legal arguments that the Bush administration, but to go beyond that and make new and sweeping legal arguments in an attempt to hide criminal conduct and incompetence, is staggering hypocrisy. That sure as hell isn't what I voted for in November, and it should be similarly unacceptable to a public that put Obama in office precisely to escape the eight long years of illegality and incompetence we witnessed under Bush.

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