Obama Defends Bush Wiretapping

[Reddy]

I just heard this on MSNBC

 

Obama's DoJ Defends Bush Wiretapping

 

I'm pissed.

 

The US Justice Department under President Obama is invoking Bush Administration tactics to dismiss a lawsuit alleging federal agents engaged in illegal phone and email surveillance of ordinary US citizens.

 

The 36-page brief invokes"state secrets" privileges to keep mum on the case, and claims the 2001 Patriot Act grants government agencies an umbrella "sovereign immunity" for domestic spy programs.

 

"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," EFF senior staff attorney Kevin Bankston."But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that much-publicized warrentless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."

Edited April 8, 2009 by Reddy

[lostfan]

Yeah it's really not as simple as it's dumbed down to being by the time it reaches the media.

[Reddy]

Yeah it's really not as simple as it's dumbed down to being by the time it reaches the media.

i get that.

 

but at the same time, i think what it amounts to is Obama and his head of the CIA both being outsiders. The CIA doesn't want to lose the power its amassed in the Bush admin, and Obama doesn't want to pick a fight, or stand in the way of the agency, so he's rolling over and letting them get what they want.

 

Gah.

[lostfan]

i get that.

 

but at the same time, i think what it amounts to is Obama and his head of the CIA both being outsiders. The CIA doesn't want to lose the power its amassed in the Bush admin, and Obama doesn't want to pick a fight, or stand in the way of the agency, so he's rolling over and letting them get what they want.

 

Gah.

NSA actually - what I'll say here (I don't really feel like doing extra research here, after a while all of these expose' type articles start looking the same) is that EO 12333 still applies and the NSA, or any other intelligence agency doesn't arbitrarily spy on US citizens. At least it's not supposed to, if someone gets caught doing that then they're in big trouble.

[Reddy]

NSA actually - what I'll say here (I don't really feel like doing extra research here, after a while all of these expose' type articles start looking the same) is that EO 12333 still applies and the NSA, or any other intelligence agency doesn't arbitrarily spy on US citizens. At least it's not supposed to, if someone gets caught doing that then they're in big trouble.

but the point of this is that they WOULDN'T be in big trouble. that's the kicker.

[lostfan]

Actually the more I read this the less I see about anything to flip out over. State secrets are state secrets for a reason which is something that privacy advocates can't get with and never will - there is openness, and then there is damage to national security. It's not really something that can be looked at in a vacuum, but of course it's neatly summarized into a sexy headline "Obama's DoJ Defends Bush-era Wiretapping"

Edited April 8, 2009 by lostfan

[NorthSideSox72]

Actually the more I read this the less I see about anything to flip out over. State secrets are state secrets for a reason which is something that privacy advocates can't get with and never will - there is openness, and then there is damage to national security. It's not really something that can be looked at in a vacuum, but of course it's neatly summarized into a sexy headline "Obama's DoJ Defends Bush-era Wiretapping"

But lines can and should be drawn. This isn't about state secrets in any case - its about acquiring video, audio or other intrusively acquired private information without a warrant. And that, I feel, can indeed be black and white. FISA is there for a reason, they can even get the warrant after. But as soon as you open the door to allowing surveillance without SOME kind of judicial writ process, you are over the line, IMO.

 

Now I will say, I am sure you are right that there are many subtelties we aren't seeing here. But on the surface, looking at what I can find so far, I am pissed as well.

 

[lostfan]

I can't even figure out what I'm supposed to be pissed at based on this article alone. There's just not enough information besides the fact that a different legal route was taken.

 

For one thing, although I think it's pretty evident that someone, somewhere took a couple of extra liberties with the Constitution, the "loss of rights" I always felt was overblown. People aren't having the government randomly break into their house ranand surreptitiously place surveillance equipment into their house or whatever without warrants. They just aren't.

Edited April 8, 2009 by lostfan

[NorthSideSox72]

I can't even figure out what I'm supposed to be pissed at based on this article alone. There's just not enough information besides the fact that a different legal route was taken.

 

For one thing, although I think it's pretty evident that someone, somewhere took a couple of extra liberties with the Constitution, the "loss of rights" I always felt was overblown. People aren't having the government randomly break into their house ranand surreptitiously place surveillance equipment into their house or whatever without warrants. They just aren't.

Here is what upsets me. First, the fact that warrantless wiretapping of US citizens and legal residents would EVER exist. It simply should not. And if they can stand up and say that no legal US resident will ever be the subject of domestic surveillance without a warrant, then I'll be satisfied.

 

Which leads to the behavior mentioned in the article. They chose not to say that - they chose to not disclose the warrantless wiretapping details. Now, I don't want them to reveal technical or secret details. But I sure as hell expect them to assure the citizens of the US that they are protected by the Constitution against warrantless surveillance.

 

[lostfan]

Ok, let me be clear that I don't support warrantless wiretapping and I thought Bush's program was disingenuous. I also agree with the statement that millions of citizens were spied on w/o a warrant is false. But here it looks like people are upset that the DoJ didn't completely denounce the program or what have you. I'm no lawyer but I'm just not seeing how, in this case. They are going off the Patriot act (like it or not, it's the law, something else that was completely overblown BTW) and the state secrets reasoning is valid.

[NorthSideSox72]

Ok, let me be clear that I don't support warrantless wiretapping and I thought Bush's program was disingenuous. I also agree with the statement that millions of citizens were spied on w/o a warrant is false. But here it looks like people are upset that the DoJ didn't completely denounce the program or what have you. I'm no lawyer but I'm just not seeing how, in this case. They are going off the Patriot act (like it or not, it's the law, something else that was completely overblown BTW) and the state secrets reasoning is valid.

It is my opinion that any warrantless wiretapping, domestically, of legal US residents and citizens, is never Constitutionally valid. The Patriot Act, from what I recall, doesn't specifically violates this, but opens the door for that possibility.

 

And frankly I don't care if it is one person or a million, I won't accept that as OK. The state secrets reasoning is valid in so far as anything beyond that, and anything about the details of how things are done that needs to remain secret.

 

[lostfan]

It is my opinion that any warrantless wiretapping, domestically, of legal US residents and citizens, is never Constitutionally valid. The Patriot Act, from what I recall, doesn't specifically violates this, but opens the door for that possibility.

 

And frankly I don't care if it is one person or a million, I won't accept that as OK. The state secrets reasoning is valid in so far as anything beyond that, and anything about the details of how things are done that needs to remain secret.

I should've also specified that those two statements weren't intended to be read together, FWIW. Illegal is illegal.

 

What we need here is for Congress to step up and close this hole and make a warrant, even in a secret court, mandatory (redundant as that may sound). In fact, I don't really know why they haven't already. It's not a job for the Executive branch though and I think this is one reason why.

Edited April 8, 2009 by lostfan

[longshot7]

Actually the more I read this the less I see about anything to flip out over. State secrets are state secrets for a reason which is something that privacy advocates can't get with and never will - there is openness, and then there is damage to national security. It's not really something that can be looked at in a vacuum, but of course it's neatly summarized into a sexy headline "Obama's DoJ Defends Bush-era Wiretapping"

 

The other issues is that the people who perpetrated the warrantless wiretapping in the Bush Admin need to be PROSECUTED - and this is disappointing that it looks like Obama's DOJ won't do that. I mean, the 4th Amendment is pretty clear - people that go around it need to be taught a lesson.

[kapkomet]

The other issues is that the people who perpetrated the warrantless wiretapping in the Bush Admin need to be PROSECUTED - and this is disappointing that it looks like Obama's DOJ won't do that. I mean, the 4th Amendment is pretty clear - people that go around it need to be taught a lesson.

No, in fact, Obama's DOJ is doing the same thing. Oops. We should PROSECUTE them, too! (Like that will ever happen).

 

[lostfan]

The other issues is that the people who perpetrated the warrantless wiretapping in the Bush Admin need to be PROSECUTED - and this is disappointing that it looks like Obama's DOJ won't do that. I mean, the 4th Amendment is pretty clear - people that go around it need to be taught a lesson.

The Obama administration made it clear a few weeks ago they had no interest in doing anything like that.

[lostfan]

No, in fact, Obama's DOJ is doing the same thing. Oops. We should PROSECUTE them, too! (Like that will ever happen).

Yeah I know you couldn't wait to say this, but the linked article didn't even say anything like that. They dismissed a lawsuit against the Bush administration based on reasons stated above. I'll save my indignation for when/if the Obama admin actually breaks the law.

[kapkomet]

Yeah I know you couldn't wait to say this, but the linked article didn't even say anything like that. They dismissed a lawsuit against the Bush administration based on reasons stated above. I'll save my indignation for when/if the Obama admin actually breaks the law.

Seriously, Obama hasn't changed anything like these laws. He's doing the same exact thing. And honestly, it doesn't bother me.

 

[Balta1701]

I should've also specified that those two statements weren't intended to be read together, FWIW. Illegal is illegal.

 

What we need here is for Congress to step up and close this hole and make a warrant, even in a secret court, mandatory (redundant as that may sound). In fact, I don't really know why they haven't already. It's not a job for the Executive branch though and I think this is one reason why.

Isn't that already exactly the case? By every bit of law I've read, if you want to wiretap a U.S. citizen for any purpose, including national security, you at least need to go through the FISA court and receive a FISA warrant declaring that the search is pertinent to national security issues.

 

The problem as I see it isn't that the law is unclear or has a loophole in it. It's that the last administration and seemingly now this one blatantly decided they were going to violate the law and Congress has failed to call them on it/covered their asses with their retroactive immunity.

 

To borrow a phrase from the gun debate...we don't need new laws, we need to enforce the ones on the books.

[lostfan]

Isn't that already exactly the case? By every bit of law I've read, if you want to wiretap a U.S. citizen for any purpose, including national security, you at least need to go through the FISA court and receive a FISA warrant declaring that the search is pertinent to national security issues.

 

The problem as I see it isn't that the law is unclear or has a loophole in it. It's that the last administration and seemingly now this one blatantly decided they were going to violate the law and Congress has failed to call them on it/covered their asses with their retroactive immunity.

 

To borrow a phrase from the gun debate...we don't need new laws, we need to enforce the ones on the books.

The last administration decided that since Congress didn't give them what they wanted, that they'd take it themselves. The "loophole," if there is one, is that the current administration doesn't want to open the door of prosecuting people from the previous administration. Which I don't really blame them for, because it would turn into a petty b****fest. If that happened, imagine what would happen if the next administration was Republican. I'd hate living here.

 

So, what I'd rather see happen is just have Congress pass a law saying "the executive branch can't do this" even though it's already pretty much understood. To make it harder for someone to break the law again in the future. I admit this probably won't happen, Congress as a body doesn't like to take initiative to do anything.

Edited April 8, 2009 by lostfan

[Balta1701]

So, what I'd rather see happen is just have Congress pass a law saying "the executive branch can't do this" even though it's already pretty much understood.

They passed it, in 1978. It's not just understood.

 

If the President decides to shoot someone, Congress doesn't have to pass another law saying it's illegal in order to keep future Presidents from shooting people.

[lostfan]

That's a ludicriously extreme example. If the President shoots someone he gets impeached immediately/goes to criminal court. If he does something unconstitutional he needs to be challenged by Congress or the Supreme Court (SCOTUS did, a few times). Congress should've taken action, for whatever reason they didn't. Bush's own DoJ obviously wasn't going to incriminate itself, Obama's DoJ doesn't want to set any bad precedents. This is why it's not something for the executive branch to decide.

[Balta1701]

That's a ludicriously extreme example. If the President shoots someone he gets impeached immediately/goes to criminal court. If he does something unconstitutional he needs to be challenged by Congress or the Supreme Court (SCOTUS did, a few times). Congress should've taken action, for whatever reason they didn't. Bush's own DoJ obviously wasn't going to incriminate itself, Obama's DoJ doesn't want to set any bad precedents. This is why it's not something for the executive branch to decide.

This is not currently a constitutional question, it's a question of the FISA law. There is specific law on the books saying that what the President did and admitted to doing is illegal. He acted in deliberate violation of the FISA law. The courts should have taken action, but the people targeted have been unable to get actual proof that they were spied on because Congress has protected them, and thus the people who have grounds to bring the case are blocked from doing so by acts of Congress. The Obama DOJ could bring charges but that would be mean and we can't have that.

 

The only constitutional question here is the constitutionality of the FISA law itself. But there's a key point...if there's a law on the books that you feel is unconstitutional, the procedure is not "Violate the law and then cover it all up", the procedure is to bring a challenge of that law up before an appeals court (something that has not yet been done by any administration, including the Bush admin.)

[lostfan]

Yes there is a law, but it's based on a constitutional question like all of these procedural laws (e.g. FISA) are.

 

This is still a matter for Congress to resolve. The DoJ is not going to do it.

[Balta1701]

This is still a matter for Congress to resolve. The DoJ is not going to do it.

Congress isn't going to do it either. That'd be too angry and partisan, you know, enforcing the law, and we can't have that.

[Y2HH]

Congress isn't going to do it either. That'd be too angry and partisan, you know, enforcing the law, and we can't have that.

 

Nice.