Wednesday, April 8, 2009

Change fail

As a friend of mine sometimes likes to say when something outrageous and silly happens, "Really? We're doin' this now?"

It appears that the Obama Administration's Department of Justice has not only embraced some of the more ridiculous claims of the Bush Administration when it comes to the wiretapping and surveillance of domestic communications, but has actually gone even further.

Not cool.

Glenn Greenwald lays it out like this:
...EFF -- which was the lead counsel in the lawsuits against the telecoms -- thereafter filed suit, in October, 2008, against the Bush administration and various Bush officials for illegally spying on the communications of Americans. They were seeking to make good on the promise made by Congressional Democrats: namely, that even though lawsuits against telecoms for illegal spying will not be allowed any longer, government officials who broke the law can still be held accountable.

But late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

This is absolutely unacceptable. Obama and his staff have already done a lot of good for this country, rolling back many of the more egregious pieces of legislation passed under Bush and pushing for many progressive programs, but that by no means buys them a free pass to get crazy in other areas.

And crazy they've gotten, in terms of basically reaffirming and actually expanding upon every single one of the Bush DoJ's radical secrecy powers.

There is simply no reason whatsoever that the government needs to be or should be allowed to spy on its own citizens without warrant. The sheer volume of information gathered through such means alone is grounds for criticism, as no amount of man or computing power could possibly sort through it all to find the potentially relevant tidbits. But even more important is the issue of legality and civil rights. We the People have the right not to be eavesdropped on at the whim of government.

And yet? That's exactly what they have been, and likely will continue to be doing. The insult to injury is that the government is now saying that we have no recourse to hold them accountable for these illegal actions. It's essentially the DoJ giving American citizens the ol' Scalia va fanculo.

Greenwald again sums it up well:
Thus: how the U.S. government eavesdrops on its citizens is too secret to allow a court to determine its legality. We must just blindly accept the claims from the President's DNI that we will all be endangered if we allow courts to determine the legality of the President's actions. Even confirming or denying already publicly known facts -- such as the involvement of the telecoms and the massive data-mining programs -- would be too damaging to national security. Why? Because the DNI says so. It is not merely specific documents, but entire lawsuits, that must be dismissed in advance as soon as the privilege is asserted because "its very subject matter would inherently risk or require the disclosure of state secrets."

What's being asserted here by the Obama DOJ is the virtually absolute power of presidential secrecy, the right to break the law with no consequences, and immunity from surveillance lawsuits so sweeping that one can hardly believe that it's being claimed with a straight face. It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior.
Couldn't have said it better myself. Heck, even Keith Olbermann is deeply displeased with the move, and he's been one of Obama's biggest cheerleaders. You should know you've messed up pretty royally when you've pissed off such a loyal supporter.

So are we going to sit back and continue to allow this sort of gross violation of our rights to go unchecked? I sure as hell hope not. Thankfully, we've got organizations like the EFF and ACLU getting our backs, but it's going to take all of us standing up and speaking out, working to hold the appropriate people appropriately accountable, to make the big difference.

Otherwise, we have no right to call ourselves a democracy.


Daniella Maria said...

::pounds head against the wall::
god damn it, obama

illusory tenant said...

Glenn Greenwald needs to tighten his wig a bit, to keep it from flipping like that.

I would expect the government to defend itself vigorously against any suit, including mobilizing whatever arguments are available based in whatever federal law it has at its disposal.

How the Obama administration actually implements its national security policy is a separate question, and the DoJ's motion to dismiss isn't necessarily an indication of the administration's intentions in that regard.

It's those policies people need to keep an eye on, not so much the resourcefulness and creativity of the DoJ attorneys.

Emily said...

I blame Whigs.

IT, you may be right, but I don't think you can just brush this off so quickly. Yes, we should absolutely be more concerned about the policies themselves, and I think that's precisely what's happening here.

If the DoJ is expanding government protection from lawsuits over its massive illegal surveillance programs, I don't think it's entirely unreasonable to suspect that those protections may well be used to expand and/or continue the programs. That should absolutely be cause for concern and closer scrutiny, don't you think?

illusory tenant said...

I'll concede that suspicion is warranted (no pun intended), but suspicion of what the government is up to at any given time should be a matter of general principle.

I'm just saying that the DoJ's legal defense is no indication of how the administration intends to pursue policy.

The DoJ would be remiss if it didn't throw the kitchen sink into its motion to dismiss, as obnoxious as David Addington's kitchen sink may be.

Emily said...

The DoJ would be remiss if it didn't throw the kitchen sink into its motion to dismiss...

This may make me incredibly naive, but why?

Anonymous said...

I'm sorry, Emily, but this is a case where reading only the left's take on an issue is problematic. This is an incredibly complex legal argument and it's also precedent setting in terms of procedure over individual issues. Is the executive branch supposed to voluntarily give up power? Why? The reason we elect someone like Obama is not so he can roll back power, but use it more wisely and justly. Where would you prefer to see this kind of authority lay... with Congress? Elected every two years?

Students of history will recognize the ebb and flow of power between branches. It ain't right or wrong, it just is. Who gets to say whether phones are tapped if not the DOJ?

Since forever, the three branches of government have struggled against each other for control, and amen for that. In this particular case, the DOJ isn't arguing for Bush policies as much as it's arguing that the authority to make those policies continues to be the president's. That argument is a great one to have for the sake of democracy and I'm thrilled it's happening in court rooms. If we're lucky, the combatants will have to state their respective cases in the Supreme Court. Same as it ever was, in other words.

illusory tenant said...

This may make me incredibly naive, but why?

The short answer is, because they want to win. And any attorney is going put forward a series of arguments because in many cases, they all may get rejected by the court except for one.

That some of those arguments have been appropriated from the previous administration shouldn't raise too much concern. After all, Addington & Co. were arrogant bastards, but they weren't dumb.

A good argument is a good argument, regardless of who formulated it.

As Anon points out, the president wants to preserve his authority. And like I said, the concern should be over what he does with that authority, not how he goes about defending it in court.

gnarlytrombone said...

the concern should be over what he does with that authority

Sure, sure. But his legal strategy is making it mighty difficult to know how he's using his authority.

Link for Emily.

Emily said...

Who gets to say whether phones are tapped if not the DOJ?

That's all well and good when they've got warrants for said wiretapping, but the problem here is that we're talking about a vast program of warrantless (ie: illegal) surveillance that we have no way to keep in check because the DoJ has essentially told us to just trust them. You'll forgive me if it's difficult to take this one on faith, especially after the last 8 years.

(Part of the problem is that I've been thoroughly disillusioned with our clandestine services ever since reading Tim Weiner's "A Legacy of Ashes")

I understand that each branch of government will always fight to preserve, and even expand, its powers. I'm all for the check and balances of the multiple branches, believe you me. What I'm asking for in this case, then, is a check on the power of the executive to break the law. I don't think that's unreasonable.

I get what both you and IT are saying, though. It makes sense. But I guess it still just doesn't sit right with me.

illusory tenant said...

Here's somebody expanding considerably on what I was suggesting earlier.

Glenn Greenwald refers to the author of that post as a "truly creepy Obama worshiper," which is completely uncalled for.

Emily said...

IT - Thanks for that link. It is, in fact, quite illuminating and brings up a lot of interesting and good points. Call me more of a fence-sitter on this one, now, because of it. And I'm in agreement with the author of that post when he finishes with:

I am still wary of where this is going. Clearly, I'd like some more policy assurances from the Obama administration with respect to the wiretapping issue, and changes in the law.

But you can't blame the lawyers for defending their client. And you can't translate what they are doing to defend their client as a policy decision. At least not yet.

And you're right, GG calling him a creepy Obama worshiper is way out of line.

gnarlytrombone said...

Aw, c'mon. Greenwald is just mobilizing all available arguments.

illusory tenant said...

Haha. For the record, I think Greenwald has done truly outstanding work on this (and many other issues). He's a machine.

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