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Time For Obama To Stop The Spying


I think it's important not to completely jump down Obama's throat during the first two months of his presidency, especially for the actions of the various departments in his administration, most of which aren't fully staffed yet.  But I'm dismayed that Obama has yet seen fit to reduce the government's domestic spying programs and that his Justice Department is defending Bush era domestic spying tactics.

Currently, the Obama administration is trying to prevent a court from hearing a lawsuit brought against the government by a Muslim charity with evidence that the charty's conversations with their lawyers were intercepted by the government.  The charity wants damages and, more than that, a court to rule on the legality of the government's eavesdropping. It's no surprise that the Bush administration fought the suit on state secrets grounds but it is surprising that the Obama administration is following the same legal strategy.

I think it's important for the court to hear this case and for details of the government's surveilance programs to be made public.  I'd like to hear Obama justify his administration's actions on this one.

I got hopping mad last summer when Obama voted for a domestic wiretapping bill that had two travesties in it: it codified a domestic spying program that many of us thought had been illegal before and it included amnesty for the telecommunications companies who betrayed their customers and should have been forced to pay civil penalties to their victims. I was at least able to hope that though a bad law was passed that an Obama administration would act responsibly with these new, expanded powers.

Obama's state secrets claim in this charity case is not a good sign.  Republicans (like those behind the Op Ed page of the Wall Street Journal) see it as an endorsement of Bush era security policies and they're right.  While I trust Obama far more than I ever trusted Bush, it's not the president that matters here -- it's the government employees of the national security and intelligence agencies that can't be trusted.  Courts are the only venue that citizens who have been illegally spied on can turn to for help and the Obama administration, just like the Bush administration, wants to deny them access to judges and juries.

Obama inherited  a lot of Bush's blunders and I think we all accept that in trying to undo them, he's going to do some things that we on the left are not going to like.  I think leaving 50,000 troops in Iraq and calling it a withdrawal means that we're leaving 50,000 too many soldiers in Iraq.  But I'll accept that Obama has to do what he has to do to end the war responsibly.

In this case, though, he's not trying to end a Bush era policy, he's continuing it and he's defending the indefensible.  We don't need more domestic psying, we need less of it.  Obama should be rolling back the government's powers, not embracing them. 



19 Comments

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Thanks for staying on top on this, Destor. I agree.

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Ditto on what Bwak said. The Speaker and Reid have to be watchful about this secrecy business as well as executive power.

The Secretary of the Treasury wants power, the more the better.

The same with all the cabinet posts.

That is the nature of power.

And I certainly have more faith in the New Administration than I have had in any administration but especially compared to the last one.

Too much secrecy and you will be lulled into letting go of secrets that help you look good and hide the others.

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Obama's responses to any issue resonate, either because they are the responses we anticipated, or because they leave an uneasy chill in the air of our expectations.
This issue is disquieting. As is his response to the banks.
We, you and I, are not so far apart on what we think as I once thought.
Namaste, Destor.

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Nah, we were never that far apart. But I always like debating with you. It's fun and informative. But, yeah, we've always been on the same side of the big war.

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Though not on "spying,", there are sections in the Air Force One interview with New York Times in today's paper that might interest those interested in civil liberties issues:

....The president spoke at length about the struggle with terrorism in Afghanistan and elsewhere, staking out positions that at times seemed more comparable to those of his predecessor than many of Mr. Obama’s more liberal supporters would like. He did not rule out the option of snatching terrorism suspects out of hostile countries.

[....more on Afghanistan....]

During the interview, Mr. Obama also left open the option for American operatives to capture terrorism suspects abroad even without the cooperation of a country where they were found. “There could be situations — and I emphasize ‘could be’ because we haven’t made a determination yet — where, let’s say that we have a well-known Al Qaeda operative that doesn’t surface very often, appears in a third country with whom we don’t have an extradition relationship or would not be willing to prosecute, but we think is a very dangerous person,” he said.

“I think we still have to think about how do we deal with that kind of scenario,” he added. The president went on to say that “we don’t torture” and that “we ultimately provide anybody that we’re detaining an opportunity through habeas corpus to answer to charges.”

Aides later said Mr. Obama did not mean to suggest that everybody held by American forces would be granted habeas corpus or the right to challenge their detention. In a court filing last month, the Obama administration agreed with the Bush administration position that 600 prisoners in a cavernous prison on the American air base at Bagram in Afghanistan have no right to seek their release in court.

Instead, aides said Mr. Obama’s comment referred only to a Supreme Court decision last year finding that prisoners held at Guantánamo Bay, Cuba, have the right to go to federal court to challenge their continued detention.

Mr. Obama signaled that those on the left seeking a wholesale reversal of Mr. Bush’s detainee policy might be disappointed. Mr. Obama said that by the time he got into office, the Bush administration had taken “steps to correct certain policies and procedures after those first couple of years” after the Sept. 11 attacks.

He credited not Mr. Bush but the former Central Intelligence Agency director Michael V. Hayden and the former director of national intelligence Mike McConnell, who “really had America’s security interests in mind when they acted, and I think were mindful of American values and ideals.”....

from
Obama Ponders Outreach to Elements of the Taliban
By HELENE COOPER and SHERYL GAY STOLBERG

Note on the left menu there, there is a link to a full transcript, I haven't read it yet.

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P.S. Off topic regarding the Times interview,

The dead tree version had two sidebars on the interview that were interesting (as well as a selection of excerpts,) that he disagreed with Eric Holder's language as to "a nation of cowards" on race, saying “I’m not somebody who believes that constantly talking about race somehow solves racial tensions.” And that he called the New York Times back later to make sure it was clear that why he didn't cotton to the label of socialist.

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And I am still hopping mad. And I am not getting any less mad this this latest news on the domestic spying front. Not only does it need to be stopped and never done again but the whole program needs to be investigated with possible prosecutions of people involved in it if laws were broken.

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We're "on the same page" today, Destor. Good post.
Libertine, I am still mad, too. For me it is a principle. I believe that if my government is going to spy on me, there needs to be probable cause. It is not "cause" to be a supporter of ACLU and get their e-mails, or to write a blog critical of the amending of FISA last year. Ugh!

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Heck, to me it's not just "probable cause." A citizen who has been spied on should also be allowed to challenge the spying and to sue for damages. They should go into court on equal footing with the government. Now, the courts are biased in favor of the government and what the Obama administration seems to want is to deny access to the courts altogether!

This is really, really bad.

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Destor, as I read your comment about citizens being able to challenge spying in court, I suddenly realized, once again, that our President is all about transparency. So he would not feel as offended as you and I would, if the roles were reversed.
Mike McConnell was his briefer all during the transition and he can be smooth and persuasive. And Adm. McConnell had already convinced the Senate that there was no way to do electronic surveillance but by the "scoop up everything, and use the magic algorithms" method developed with the telecommunications companies.
He convinced Congress and others that the analysts were good and patriotic people, who always used minimization. "So you needn't worry. It is necessary because they want to kill us.'

And surely if I have done nothing wrong, what do I have to worry about. Well, I worry because it is unconstitutional, even if Congress has authorized it, in my opinion.

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Destor, might want to read Obama's comments about FISA on the Senate Floor, February 12, 2008 (note: link is to my site and mark-up). Obama never has stated he is opposed to FISA court authorized spying; he was opposed to giving backdated immunity to telecoms, and non FISA court authorized snooping, but he did vote for the FISA bill in the end. You need to understand just what Obama's position has been on this, not what others claim it has been.

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Thanks pseudo...

I was hesitant to criticize Obama about this for that very reason -- he has historically not been as concerned with government surveillance powers as I am.

So just to be clear, I am criticizing him here and will continue to do so, because I think he needs to change his mind. I believe that Obama SHOULD roll back government authority in this area. But I realize that he doesn't agree with me at this point but... the guy's wrong.

The one thing I won't write about Obama on the domestic spying issue, or on a host of civil liberties issues, is that he's a hypocrite. He isn't. But he is wrong on this.

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i believe that surveillance without FISA court approval is a violation of the Constitution. I also am of the opinion that this is not properly Obama's fight. It should be Congress' duty, and the idea currently being passed around that there should be an investigation by non-politician citizens, who do not have a history of being slatternly partisans seems like a very good idea to me.

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I guess you might expect thre Executive to become overly enthralled with the powers of the Executive that are handed to him upon coming to office. Which is why we have three supposedly equal branches of government.

Inasmuch as there are ANY questions regarding the ability of Presidential acts or policies to pass Constitutional muster, it is Congress' duty to act. They can get past the "State Secrets" defense and determine what in fact is going on, challenging any questionable activities on their own.

I would hope Pelosi, Reid and Company would have the cajones to convene committee/conference hearings as necessary. It would be a way to show that at last we had proceeded past the partisanship of these last eight years that allowed Bush/Cheney to rule as unchecked despots for no other reason than that they had an "R" behind their name.

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Recommending this post because it's an important issue.

Having said that, I would only note the following.

(1) We're still only about six weeks in, and we've had an Attorney General for maybe a month. AFAIK, Holder doesn't even have any DAG's on staff yet.

I suspect that, on many of the more controversial issues, the DOJ will argue for maintaining the status quo at least until they can review all of the available information, case law, existing opinions, etc.

Of course, I do expect many of those official Administration positions to change. But it won't happen in the first few months. In the meantime, they still have to deal with real-time legal proceedings while simultaneously working through the underlying issues.

(2) It is unusual for an incoming chief executive to voluntarily relinquish power. This is one of those things where additional pressure from supporters would probably do the most good. If we don't keep the heat on about issues like warrantless wiretaps and domestic spying, we're creating the perfect conditions for Obama to keep hold of those powers.

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I think that's fair. I'm trying not to lose my temper about this because, as you say, the DOJ isn't fully staffed yet. But I think we need to make it clear that we expect these policies to change ayear from now.

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I was furious about the FISA last summer, but I'm taking a wait and see attitude now. First, he has a lot on his plate and second, he probably wants to get a handle on the security apparatus to see how effective it is and what needs to be kept and what can be done away with.

Don't get me started on Geithner, though.

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Destor, the sad truth seems to be that Obama is embracing the vast majority of Bush's tactics and strategy with respect to the domestic police state and our imperialist adventures abroad and they go hand in hand.

This is not to say he hasn't done a couple of good things in this arena, but he is clearly maintaining most of the rotten apparatus Bush built and there will be no end to it under Obama. Neither will there be an end to the Iraq War but there will be a fruitless escalation of the failed war in Afghanistan. I don't think Obama is a tyrant as Bush was and intended to be, but he is making some massive errrors in judgment on these issues.

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This is a very interesting case, one that I think may be without precedent. I would not be surprised to this go the Supreme Court. The details here do count.

First, this case goes back several years. The al-Haramain Islamic Foundation is a Saudi funded charity organization that is believed to be a legitimate financial front for al-Qaeda. The NSA was spying on them. I'll explain why this is believed to be the case.

Several years ago, an Oregon-based branch of al-Haramain was designated a terrorist operation and its assets were frozen. The organization sued. During discovery, someone from the federal government put a record of electronic surveillance in a group of documents that was transmitted to the plaintiff's attorneys. Shortly thereafter, the government realized what had happened and sent FBI agents to round up all copies of the document. From what I can tell, all copies were recovered. The only people who saw the document were the attorneys. It is not apparent how or why this document was given to the plaintiff's legal counsel.

At this point, civil liberties organizations get involved and the case changes gears. A new case is filed alleging that al-Harmain was spied on illegally. So, here's the basic rub of the case: The plaintiffs are suing on the basis of a document they do not have. As a side note, this document may well prove incriminating. There's good reason to believe that this group may well have been involved in illicit activities.

After a few years of legal wrangling, the result is that a federal district judge has ruled that sufficient facts exist to go forward with the case (these facts basically being the circumstances I've described). He's ordered the document. The government appealed and lost, after which they filed a brief that says that the judiciary doesn't have the authority to order classified documents.

This is where it gets sticky. From what I can tell, the legal brief is technically correct. It seems to be pretty much agreed upon (legally speaking) that the Executive is the last word on what is and is not classified. The whole reason for the FISC is so that we have a judicial review that maintains the secrecy of issues with national security implications. The government has not disclosed whether or not there was a warrant in this case.

It's a pretty bizarre set of circumstances, but I think the takeaway here should be, first and foremost, that the situation is illustrative of exactly why the Bush approach is the wrong one. If these matters had been conducted under FISA, it would have been easy for the government to demonstrate that the surveillance was legal and had been reviewed by the FISC. This is really another Bush mess that Obama will have to clean up. For now, the Obama DOJ has indicated in this proceeding that they have reviewed the case and intend to maintain that the document is classified. They may well have good reason for keeping it classified, but we don't really know what those reasons are.

All we can do now is watch the results closely as they unfold. This case may well represent the only opportunity for a suit against illegal surveillance to be adjudicated.

Having said all of this, I generally share your sentiments.

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