Either Cunning or Abusive

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Readers of Sensen No Sen know that one of the subjects about which I write most frequently is civil liberties, and that within that topic, one of the issues that angers me most is the system of blatantly illegal, warrantless surveillance insituted by former President George W. Bush. Readers also know that, despite my dismay over his backing for the despicable law providing retroactive immunity to telecommunications companies supporting that program, I believe Barack Obama was the best candidate available in the 2008 presidential election, and I voted for him.

Since his inauguration, I think Mr. Obama has largely justified that confidence, performing at a level well beyond what we have seen in recent administrations, and doing so while confronting crises of nearly unprecedented scope and number. Within the realm of civil liberties, he has gotten many things right, issuing executive orders to close the Guantanamo Bay prison camp, suspend the mockery of justice that is the military commissions system, requiring that the Central Intelligence Agency (CIA) adhere to the Army Field Manual in its treatment of prisoners under interrogation, banning CIA secret prisons, and even limiting both his own power and that of former chief executives to withhold documents and other information through claims of secrecy.

With regard to the warrantless surveillance program, however, the contrast in Mr. Obama's policies could not be more stark. The White House has resisted all attempts to shutter the initiative or disclose information to individuals who may have been directly affected by what is the single largest corporate-powered, government-approved invasion of privacy in American history. Worse, in the ongoing lawsuit brought by the Electronic Frontier Foundation (EFF) against the government, the Obama Department of Justice (DOJ) has not only relied on arguments used by the Bush Administration in defending illegal surveillance, it has actually taken an even more radical position in its efforts to have the litigation dismissed.

As the EFF's Tim Jones explains:

First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue "would cause exceptionally grave harm to national security." As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence.

It's an especially disappointing argument to hear from the Obama Administration. As a candidate, Senator Obama lamented that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court." He was right then, and we're dismayed that he and his team seem to have forgotten.

Sad as that is, it'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 USA 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. [Emphasis mine.]

As awful - and accurate - as that evaluation is, is it possible that the president has other legitimate concerns? After all, Mr. Obama has a stated preference for looking to the future, and he may be continuing to seek opportunities to increase bipartisanship by publicly acknowledging one of the Right's favorite arguments, that one shouldn't "criminalize policy differences." Likewise, in times that require the support and effectiveness of the intelligence community, is he, perhaps, trying to make it clear to personnel at the National Security Agency (NSA) that he won't pursue criminal action against individuals who were doing their jobs on the basis of what they were told was sound legal theory?

Dahlia Lithwick at Slate knocks these arguments down:

The fundamental mistake underpinning all the thinking above is that openness about past errors leads inexorably to ugliness, politicization, and rancor. But it's worth recalling for a moment that we are already knee-deep in ugliness, politicization, and rancor. Transparency is not necessarily the first step toward indiscriminate prosecutions of everyone who ever worked for President Bush. It doesn't mean that from now until forever, each administration will criminalize the policy differences of the administration before. It doesn't mean that all mistakes are war crimes, or that hereinafter all investigations are all "perjury traps." That's the kind of binary, good/evil thinking we were supposed to have left behind us last November.

But here is where things get interesting, and potentially hold out some hope for those of us who condemned President Bush as someone who wiped his feet on the Constitution and supported Mr. Obama. Take a look at the clip below from MSNBC's Countdown with Keith Olbermann:



In the video, Howard Fineman notes that President Obama desperately needs the intelligence community's backing, and Jonathan Turley states that the administration's position is so extreme that it essentially creates a situation in which a Constitutional right is stripped of legal protection, something which has never been allowed to stand before. While both men agree with host Keith Olbermann that the White House's policy moves on this issue are appalling, I am struck by the fact that they do not synthesize these points into a single discussion.

This is important because it raises the possibility that there is another explanation for President Obama's stance on the issue of illegal surveillance. Barack Obama has taught Constitutional law, and his current, extreme position on illegal surveillance is greatly at odds with other actions he has taken, such as the executive orders mentioned above. If he believes himself to be on shaky ground with the intelligence community, he would not want to be seen as leading any effort that might embarrass or prosecute its members. On the other hand, as Mr. Olbermann points out, one of the president's core constituencies is made up of people like myself who saw President Bush riding roughshod over the nation's founding principles. What to do?

The most obvious way for the president to extricate himself from this situation would be to pursue two tactics simultaneously: First, take a very public stance that not only equals Mr. Bush's, but exceeds it, in order to give comfort to the intelligence community; And two, make his position so radical and outrageous that Congress, the courts, or both are forced to respond in a manner that rolls back this policy. If this is what the president is doing - and it works - then the warrantless surveillance program gets shut down and investigated, the intelligence community sees him as watching their back, and since he has performed admirably in most other policy areas, his supporters forgive him by the time the 2012 election comes around.

All that being said, I have no evidence whatsoever to support this contention, but Barack Obama and his team have shown a capacity for byzantine maneuvering, their successful labeling of Rush Limbaugh as the face of the Republican Party being a recent example. Further, the president's position on the illegal surveillance program is so inconsistent with his other efforts in the realm of civil liberties - as well as statements he made during his campaign - that this explanation has to at least be considered plausible.

From my personal position, however, it is more likely that Mr. Obama is determined, for whatever reason, to keep and extend the powers arrogated to his office by the man who preceded him. During his campaign, he supported retroactive immunity for law-breaking telecommunications companies, and there was no reason for him to do so. The bill would have become law without his vote in the Senate, and the rigorous schedule of the campaign trail provided him with a ready excuse to be absent when the vote was held, and thereby avoid the anger he stirred up among his supporters.

The president is either pursuing a genuinely cunning strategy, which is possible but less likely, or in this instance, he is abusing his office every bit as badly as George W. Bush did when he was in power. In either case, and whatever the reasons behind it, Mr. Obama's current position on the warrantless surveillance program should be condemned, and its remedy will almost certainly have to come from the legislature and the judiciary. I'm hoping that is President Obama's plan as well, but it would be incredibly foolish to count on it.