Obama and Wiretapping

pgabriel · Apr 8, 2009

B-Bob said:

Yeah, something doesn't smell right to me. You do an about face on things like water-boarding and tax cuts for the wealthiest people and communicating with other nations...
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i agree, obama has stuck to many promises, the fact he has taken this stance on this issue doesn't warrant a complaint that his entire campaign was a farce.

rhadamanthus · Apr 8, 2009

Major said:

That's not the state secrets argument. It's not that state secrets are being gathered - it's that a trial would reveal things that would be harmful to national security.
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Correct, and my argument never implies otherwise. What it does imply is twofold:

1) The "state secrets" claim is, as Greenwald wrote, "outrageously broad". Obama's DOJ has taken this even further (and this is the important part) in writing that unless the data is "willfully disclosed" you cannot even sue them. That's an unfathomably unamerican and orwellian use of circular logic.

2) I would argue that any "state secrets" gathered illegally are void. If you cannot gather it legally, you forfeit your argument to the claim that it's a "state secret". I'd call it analogous to improperly gathering evidence for a crime. No doubt, some would argue that this argument could be dangerous, if the secrets were important enough. I'd counter that is the secrets were that important, you should have gathered them legally. In this case that counter is especially devestating: FISA allows retroactive warrants, and even the warrants requested ahead of time were almost never denied. This is a straight-up power trip, the motivation for which can only be explained by a desire to hide what actions the "authorities" are taking. Color me righteously livid.

In a general sense, are you opposed to the idea of having any state secrets? For example, in the 1970's, if a trial would have revealed the exact locations of our nuclear arsenals, giving the USSR a huge strategic advantage, would you have supported that? I have no idea what the state secrets involved here are, but there's the paradox here that the only way for us to know is by revealing them.
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Discussed above, and moot. No one is advocating an abolishment of "state secrets", I'm demanding that they be gathered legally.

"We reject as false the choice between our safety and our ideals."
-Barack Obama 1/20/2009

That's certainly true - but that's a different argument than what the Obama administration faces. The possible illegal activity occurred before his administration - he has no control over that part. What his admin sees is the situation in front of them: would a trial result in the release of state secrets, and is that harmful to US national security? If so, then his Justice Dept has to take the position they've taken - regardless of what misconduct might have led to that.
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Disagree. Ignoring my own opinion that these "state secrets" are primarily associated with further civil rights violations and abuse, the aforementioned "misconduct" should be punished, period.

Certainly - I'm not suggesting its a good or bad position to take, but that appears to be the Obama philosophy. Remember, governing is about tradeoffs. Is spending political capital and time on things like investigating the past going to hurt your future agenda? If so, is that worth the tradeoff? If Obama pushes torture investigations, is that going to cause the GOP to stonewall health care reform in retaliation, for example? If so, is it better to investigate torture or cover 40 million people with health care?
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Yes, pragmatism is required in politics. But not on matters that involve blatant violation of the constitution. Draw the line, Major, lest you become a partisan shill hiding under the guise of so-called pragmatism. Comparing this to Clinton's SS scheme? Absurd. Laughably absurd. Heck, where was this "pragmatism" when the democrats told the EFF that immunity for the telecoms was acceptable since the political operatives in the GOP were responsible, and fair game for lawsuits? Apparently this was a lie, one that Obama has now blatantly endorsed.

When Congress immunized telecoms last August for their illegal participation in Bush's warrantless eavesdropping program, Senate Democratic apologists for telecom immunity repeatedly justified that action by pointing out that Bush officials who broke the law were not immunized -- only the telecoms.

Taking them at their word, 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.
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rhadamanthus · Apr 8, 2009

pgabriel said:

I don't feel the telecoms should be targeted by any prosecution. the government comes to them and asks them to give them access to communications to prevent terrorisim puts them in a precarious position
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Tough beans. They are beholden to require a warrant.

But that's not really the issue here anyhow - the issue is that even if I was to accept your stance pgabs, Obama is now granting that same excuse and immunity to the GOP operatives that endorsed violating the constitution.

rimrocker · Apr 8, 2009

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Greenwald today...

Keith Olbermann's scathing criticism of Obama's secrecy/immunity claims

Several weeks ago, I noted that unlike the Right -- which turned itself into a virtual cult of uncritical reverence for George W. Bush especially during the first several years of his administration -- large numbers of Bush critics have been admirably willing to criticize Obama when he embraces the very policies that prompted so much anger and controversy during the Bush years. 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.

The fact that Keith Olbermann, of all people, spent the first ten minutes of his show attacking Obama for replicating (and, in this instance, actually surpassing) some of the worst Bush/Cheney abuses of executive power and secrecy claims reflects just how extreme is the conduct of the Obama DOJ here. Just as revealingly, the top recommended Kos diary today (voted by the compulsively pro-Obama Kos readership) is one devoted to attacking Obama for his embrace of Bush/Cheney secrecy and immunity doctrines. Also, a front page Daily Kos post yesterday by McJoan vehemently criticizing Obama (and quoting my criticisms at length) sparked near universal condemnation of Obama in the hundreds of comments that followed. Additionally, my post on Monday spawned vehement objections to what Obama is doing in this area from the largest tech/privacy sites, such as Boing Boing and Slashdot.

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.
http://www.salon.com/opinion/greenwald/
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All that said, I'm wondering if Obama is buying time to deal with economic and military problems before charging down this road. I suspect any inquiry into this stuff will indict the actions (or, more likely, inactions) of Dem Congressional leadership as well, so it theoretically makes political sense to put this off for a bit. I don't agree with that reasoning, but I'm willing to give him a little more time. However, the day after Health Care gets passed or goes down the tubes, he better address this in a substantive fashion.

rhadamanthus · Apr 9, 2009

The EFF is still hammering Obama over this. And rightfully so.

Anyone who supported Obama on the grounds that he would undo the civil rights subversion enacted by the Bush Junta may now, in the words of Bill Simmons, go light themselves on fire.

In Warrantless Wiretapping Case, Obama DOJ's New Arguments Are Worse Than Bush's
Commentary by Tim Jones
We had hoped this would go differently.

Friday evening, in a motion to dismiss Jewel v. NSA, EFF's litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration's made two deeply troubling arguments.

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 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.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ's radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama's own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

This isn't change we can believe in. This is change for the worse.
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trueroxfan · Apr 9, 2009

giddyup said:

I just want to hold this out as a possibility: maybe transparency is a naive idea that is dangerous to this republic... and you only would really understand it until you are at that place where the buck stops.
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agreed, they can monitor my internet, my phone, they can spy on me in the shower for all i care. i have NOTHING to hide, and any information they find is only admissible if it pertains to national security, so as long as you aren't planning on carrying out a terrorist act WHY THE F SHOULD YOU CARE THAT THEY SPY ON YOU? o m g it's the principle of the matter, i have a right to privacy, it says so in the constitution....NO IT DOESN'T....i'm not saying i want the government to spy on everyone, but in times like these, i don't really give a rats a$# because i'm not a friggin terrorist. just do whatever is the safest for our country

fmullegun · Apr 9, 2009

trueroxfan said:

agreed, they can monitor my internet, my phone, they can spy on me in the shower for all i care. i have NOTHING to hide, and any information they find is only admissible if it pertains to national security, so as long as you aren't planning on carrying out a terrorist act WHY THE F SHOULD YOU CARE THAT THEY SPY ON YOU? o m g it's the principle of the matter, i have a right to privacy, it says so in the constitution....NO IT DOESN'T....i'm not saying i want the government to spy on everyone, but in times like these, i don't really give a rats a$# because i'm not a friggin terrorist. just do whatever is the safest for our country
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MadMax · Apr 9, 2009

trueroxfan said:

agreed, they can monitor my internet, my phone, they can spy on me in the shower for all i care. i have NOTHING to hide, and any information they find is only admissible if it pertains to national security, so as long as you aren't planning on carrying out a terrorist act WHY THE F SHOULD YOU CARE THAT THEY SPY ON YOU? o m g it's the principle of the matter, i have a right to privacy, it says so in the constitution....NO IT DOESN'T....i'm not saying i want the government to spy on everyone, but in times like these, i don't really give a rats a$# because i'm not a friggin terrorist. just do whatever is the safest for our country
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don't give up the Bill of Rights so easily.

surrender · Apr 9, 2009

Obama really is wimping out when it comes to rolling back previous policy.

The only good thing to come of this is that I've remembered to donate to the EFF

rhadamanthus · Jun 3, 2009

For those still claiming washington's altruistic intent, some recent developments:

eff link 1

Reports in Congressional Quarterly and the New York Times indicate that a National Security Agency (NSA) wiretap authorized by the FISA Court recorded Rep. Jane Harman trading political favors with a suspected Israeli agent. When the FBI attempted to open a criminal investigation into the matter, Attorney General Gonzales allegedly intervened because he "'needed Jane' to help support the administration's warrantless wiretapping program."

Here was EFF's initial reaction to the scandal, as reported by ABC News:

The San Francisco-based Electronic Frontier Foundation, which has been fighting legal battles against the Bush administration and now the Obama administration related to NSA wiretapping, called the story "a textbook case of political abuse of surveillance powers, but in reverse."

Instead of the Bush administration spying on its enemies for political ends, "this is an instance of them directing surveillance away from their allies for political ends," observed EFF's Kevin Bankston.

"What other insider deals it may have struck to gather support for its policies? What other political allies has it protected against criminal or intelligence investigations for political reasons?" he asked. "This raises serious questions about how the Bush administration conducted itself."

Now, in the wake of the scandal, Rep. Harman has pulled an abrupt about-face in her position on NSA wiretapping. Speaking to MSNBC this morning she said:

I'm just very disappointed that my country — I'm an American citizen just like you are — could have permitted what I think is a gross abuse of power in recent years. I'm one member of Congress who may be caught up in it, but I have a bully pulpit, and I can fight back. I'm thinking about others who have no bully pulpit, and may not be aware — as I was not — that right now, somewhere, someone's listening in on their conversations, and they're innocent Americans.

This is a real change of tune for Rep. Harman. Over the past few years, she has been one of the warrantless wiretapping program's most relentless cheerleaders. Yesterday, Glenn Greenwald aptly summarized her efforts:

Indeed, as I've noted many times, Jane Harman, in the wake of the NSA scandal, became probably the most crucial defender of the Bush warrantless eavesdropping program, using her status as "the ranking Democratic on the House intelligence committee" to repeatedly praise the NSA program as "essential to U.S. national security" and "both necessary and legal." She even went on Meet the Press to defend the program along with GOP Sen. Pat Roberts and Rep. Pete Hoekstra, and she even strongly suggested that the whistleblowers who exposed the lawbreaking and perhaps even the New York Times (but not Bush officials) should be criminally investigated, saying she "deplored the leak," that "it is tragic that a lot of our capability is now across the pages of the newspapers," and that the whistleblowers were "despicable." And Eric Lichtblau himself described how Harman, in 2004, attempted very aggressively to convince him not to write about the NSA program.

So, when countless ordinary Americans are being wiretapped without warrants, Harman declares the program "both necessary and legal." But when Harman herself is victim to a court-approved wiretap, she decides it's "a gross abuse of power"? You can draw your own conclusions, but to us this seems the height of hypocrisy.

These latest revelations shed new light on the underhanded tactics that the Bush Administration was willing to employ to conceal its illegal spying operation and protect it from oversight. It raises serious questions about what other efforts the Bush Administration undertook to shore up Congressional support for its illegal warrantless wiretapping program. This is yet another demonstration of why Congress must strengthen its oversight of the NSA’s spying operations and reconsider the broad expansions to the government’s surveillance authority that it passed last summer as part of the FISA Amendments Act.
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eff link 2

The New York Times story with new revelations of surveillance abuses under the NSA's warrantless wiretapping program is making big news today (Associated Press, Washington Post, Salon,) as well it should. Beyond the allegations of an out-of-control spying program, the story casts new light on last spring's surveillance battle in Congress.

That battle culminated in the passage in July of the FISA Amendments Act, which substantially reformed US surveillance law. The Act's proponents on the left claimed it would "respect the rule of law and the privacy and civil liberties of the American people." Its proponents on the right compared critics to "those who wear tinfoil hats around the house."

In contrast, EFF and others, said that the Act would weaken civil liberties protections and fail to stop surveillance abuses.

Which side do you think turned out to be correct?

It's only nine months later, and we're already starting to hear of the consequences. Here's today's report:

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews.

This is confirmation of what we've been saying all along: That, contrary to the statements of many who supported its passage, last July's legislation has substantially eroded Americans' privacy and only led to further abuse.

The article also provides details of an NSA attempt in 2005 or 2006 "to wiretap a member of Congress, without court approval, on an overseas trip." As EFF and others have pointed out before, allowing the NSA unchecked access to our domestic telecommunications network will inevitably lead to this kind of political abuse.

These revelations underline the need for new action on NSA surveillance abuses, both from Congress and from the White House.

Congress should repeal or reform the FISA Amendments Act, as it has now become undeniable that the checks it set on surveillance power are insufficent and dysfunctional. In addition, Congress should establish a comission or a select committee to fully and publicly investigate the NSA program, past and present.

As for the White House and the DOJ — First, they should do as Senator Feingold recommended earlier today, and waive the state secrets privilege in pending surveillance litigation. Second, they should withdraw their baseless claims of sovereign immunity. These simple actions would clear the way for true accountability through an independent judicial ruling on the legality of the program.
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FranchiseBlade · Jun 3, 2009

Lack of transparency in this type of situation is dangerous. While it is true Obama isn't authorizing warrantless wiretaps, he is keeping the past unconstitutional deeds in the dark, when they need to have a bright spotlight focused on them.

Even if some secrets come out in a trial, then we need to accept that. Whatever secrets come out, are less important than upholding our constitution. That is the sworn duty of the President.

rhadamanthus · Jun 22, 2009

Obama's policies regarding wiretapping have forced the EFF to drop their lawsuit regarding ACTA.

Anyone want to take a stab at defending this Bush-borrowed Obama policy still? Anyone still under some sort of altruisitic Obama-stands-for-the-people delusion?

Washington, D.C. - The Obama Administration's decision to support Bush-era concealment policies has forced the Electronic Frontier Foundation (EFF) and Public Knowledge (PK) to drop their lawsuit about the proposed Anti-Counterfeiting Trade Agreement (ACTA). EFF and PK had been seeking important documents about the secret intellectual property enforcement treaty that has broad implications for global privacy and innovation.

Federal judges have very little discretion to overrule Executive Branch decisions to classify information on "national security" grounds, and the Obama Administration has recently informed the court that it intends to defend the classification claims originally made by the Bush Administration.

"We're extremely disappointed that we have to end our lawsuit, but there is no point in continuing it if we're not going to obtain information before ACTA is finalized," said EFF International Policy Director Gwen Hinze. "There's a fundamental fairness issue at stake here. It's now clear that the negotiating texts and background documents for this trade agreement have been made available to representatives of major media copyright owners and pharmaceutical companies on the Industry Trade Advisory Committee on Intellectual Property. Yet private citizens -- who stand to be greatly affected by ACTA -- have had to rely on unofficial leaks for any substantive information about the treaty and have had no opportunity for meaningful input into the negotiation process. This can hardly be described as transparent or balanced policy-making."

"Even though we have reluctantly dropped this lawsuit, we will continue to press the U.S. Trade Representative and the Obama Administration on the ACTA issues," said Public Knowledge Deputy Legal Director Sherwin Siy. "The issues are too far-reaching and too important to allow this important agreement to be negotiated behind closed doors," he added.

Very little is known about ACTA, currently under negotiation between the U.S. and more than a dozen other countries, other than that it is not limited to anti-counterfeiting measures. Leaked documents indicate that it could establish far-reaching customs regulations governing searches over personal computers and iPods. Multi-national IP corporations have publicly requested mandatory filtering of Internet communications for potentially copyright-infringing material, as well as the adoption of "Three Strikes" policies requiring the termination of Internet access after repeat allegations of copyright infringement, like the legislation recently invalidated in France. Last year, more than 100 public interest organizations around the world called on ACTA country negotiators to make the draft text available for public comment.

EFF and Public Knowledge first filed suit against the Office of the U.S. Trade Representative in September of 2008 demanding that background documents on ACTA be disclosed under the Freedom of Information Act (FOIA). Rather than pursuing a lawsuit with little chance of forcing the disclosure of key ACTA documents, EFF and Public Knowledge will devote their efforts to advocating for consumer representation on the U.S. Industry Trade Advisory Committee on IP, the creation of a civil society trade advisory committee, and greater government transparency about what ACTA means for citizens.
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From slashdot.

FranchiseBlade · Jun 22, 2009

rhadamanthus said:

Obama's policies regarding wiretapping have forced the EFF to drop their lawsuit regarding ACTA.

Anyone want to take a stab at defending this Bush-borrowed Obama policy still? Anyone still under some sort of altruisitic Obama-stands-for-the-people delusion?

From slashdot.
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I think those of us opposed to it, believe there is no defense for this.

I think those that defended it when Bush started it, won't attack it now, because they would be retroactively attacking Bush.

rhadamanthus · Jun 22, 2009

FranchiseBlade said:

I think those of us opposed to it, believe there is no defense for this.

I think those that defended it when Bush started it, won't attack it now, because they would be retroactively attacking Bush.
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Tongue firmly in cheek, FB. I'm just disgusted by this about-face; and it's not just Obama, it's all the democrats.

I don't think I was under any sort of illusory mindset, but this is an outrageously brazen backstab.

FranchiseBlade · Jun 22, 2009

rhadamanthus said:

Tongue firmly in cheek, FB. I'm just disgusted by this about-face; and it's not just Obama, it's all the democrats.

I don't think I was under any sort of illusory mindset, but this is an outrageously brazen backstab.
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It is disgusting. The spotlight should be turned up brighter, not shut down. I'm guessing that the administration feels that by showing the ugliness of the last administration Republicans will claim it's just partisan sniping, and wont' work well on the agenda this administration has.

But that's too bad. Let's get this crap out and exposed. I don't really know.

rocketsjudoka · Jun 22, 2009

giddyup said:

I just want to hold this out as a possibility: maybe transparency is a naive idea that is dangerous to this republic... and you only would really understand it until you are at that place where the buck stops.
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Things look very differently inside the Whitehouse than out.

Its still up to us as the people to argue for our liberties than just place blind trust in leadership.

rocketsjudoka · Jun 22, 2009

For anyone who thinks this is new keep in mind that Obama as a senator last summer voted to change the FISA laws to allow the type of warrantless wiretaps that the NSA had been conducting.

rocketsjudoka · Jun 22, 2009

FranchiseBlade said:

Lack of transparency in this type of situation is dangerous. While it is true Obama isn't authorizing warrantless wiretaps, he is keeping the past unconstitutional deeds in the dark, when they need to have a bright spotlight focused on them.
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From what I gather if the Obama Admin's arguments hold we wouldn't know whether Obama is authorizing new warrantless wiretaps or not.

rhadamanthus · Jun 22, 2009

rocketsjudoka said:

For anyone who thinks this is new keep in mind that Obama as a senator last summer voted to change the FISA laws to allow the type of warrantless wiretaps that the NSA had been conducting.
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No, he voted to grant immunity to the telecoms involved which, as has been previously noted in this thread, was sold to the civil rights community along the lines that the "true perpetrators" in the Bush Junta would be held responsible post the election. Backstab, backstab, backstab.

Northside Storm · Jun 22, 2009

Always assume the worst about government, because you're more likely to be right.

Living in the States, I would operate under the assumption that warrentless wiretaps are still in play.

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