52 replies to this topic

[cousin it]

Obama DOJ invents radical authoritarian theory to defend Bush administration's warrantless wiretapping
POSTED BY CORY DOCTOROW, APRIL 7, 2009 9:41 AM |

The Obama administration has filed a brief in EFF's lawsuit against the government for its program of illegal, mass wiretapping of Americans, defending the practice, arguing that the lawsuit should be dismissed, endorsing the Bush administration's invented "State Secret" theory, and augmenting it with a new theory, 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 brief was not written by Bush cronies left behind by the outgoing administration: this is an invention of the Obama administration.
I don't expect the guy to walk on water, but I'd sure like it if he'd stop wallowing in the mud.

Every defining attribute of Bush's radical secrecy powers -- every one -- is found here, and in exactly the same tone and with the exact same mindset. 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. As EFF's Bankston put it: "President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties. 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 the much-publicized warrantless wiretapping program is still a "secret" that cannot be reviewed by the courts, it feels like deja vu all over again."

http://www.boingboin...invents-ra.html

[TAP]

Can someone suggest why Obama's administration may be doing this. It's not like they need to make stuff up to protect themselves post facto, and it's going to piss off a lot of their base and nullify the 'different from Bush' argument. I've read f78's idea at htgth that they're doing it to be defeated legally deliberately because they have to offer a defence. Other than that maybe the terrorist threat really is that scary or else Obama is a megalomaniac. But it does not look good....

[Rim Job]

its pissing me off change we can not believe in indeed.

[cousin it]

Can someone suggest why Obama's administration may be doing this. It's not like they need to make stuff up to protect themselves post facto, and it's going to piss off a lot of their base and nullify the 'different from Bush' argument. I've read f78's idea at htgth that they're doing it to be defeated legally deliberately because they have to offer a defence. Other than that maybe the terrorist threat really is that scary or else Obama is a megalomaniac. But it does not look good....

Obama is a constitutional scholar, and for this reason, I think that it demonstrates that he is, contrary to the image that he projects, a relativist that agrees with Bush position that the Constitution is an evolving document.

These types of fuckers in control of national government are dangerous to your freedoms. This country is continuing to slide down the slope of authoritarianism which started under Bush; the people must get over their enamoring admiration of Cult of Obama to put an end to this shit.

[TAP]

Obama is a constitutional scholar, and for this reason, I think that it demonstrates that he is, contrary to the image that he projects, a relativist that agrees with Bush position that the Constitution is an evolving document.

I won't disagree with you on this but that doesn't really explain why he would choose this particular issue to make that constitutional stand on. He's also someone who is usually good at following the way the populist wind is blowing and this isn't the case here.

[freedom78]

Obama is a constitutional scholar, and for this reason, I think that it demonstrates that he is, contrary to the image that he projects, a relativist that agrees with Bush position that the Constitution is an evolving document.

These types of fuckers in control of national government are dangerous to your freedoms. This country is continuing to slide down the slope of authoritarianism which started under Bush; the people must get over their enamoring admiration of Cult of Obama to put an end to this shit.

So you believe it to be a static document?

[cousin it]

^^Haha! You won't trap me with that one. I think that the first first ten amendments are inviolate.

[TAP]

Speaking of amendments....

http://www.politico....0409/21041.html

[freedom78]

^^Haha! You won't trap me with that one. I think that the first first ten amendments are inviolate.

I wasn't trying to trap you...just to get a sense of your understanding.

You can understand the confusion of criticizing someone for an "evolving" stance, which might force me to group you with the likes of Scalia (where I doubt you belong).

[cousin it]

[freedom78]

Can someone suggest why Obama's administration may be doing this. It's not like they need to make stuff up to protect themselves post facto, and it's going to piss off a lot of their base and nullify the 'different from Bush' argument. I've read f78's idea at htgth that they're doing it to be defeated legally deliberately because they have to offer a defence. Other than that maybe the terrorist threat really is that scary or else Obama is a megalomaniac. But it does not look good....

I think it's more a practical response than anything. In all honesty, I wouldn't be surprised to find out that the extent of domestic surveillance went far deeper into our intelligence community than any of us knows. Can you really just fire all those people? A principled argument says "yes", but principle is the fodder of campaigns, and the real world of politics is much more pragmatic.

Picture an Obama failure to compromise on this issue, firing all those people, and can you imagine the backlash if something were to actually happen? There would be no bigger swing toward using our spy capability against ourselves than if we suffered an attack after a massive layoff in our intelligence community. In other words, if the portion of the intelligence community involved in this is adequately described as "substantial", then principle is difficult ground to hold.

I certainly don't like it. But the point of my "theory" over at HTGTH still applies...the best way to have this sort of shit end is for it to be found unconstitutional via the court system...meaning that future Presidents doing this shit could be impeached for it, in all likelihood. This carries a risk, obviously, in that it could be found illegal and, sadly, the courts have been known do to stupid shit such as "the government has not released information, therefore you don't know if you're actually affected, therefore you have no grounds on which to sue".

Here's my point. We were at the point of spying on our own citizens under Bush (I haven't seen evidence to suggest this has ceased or continued under Obama, so I won't speculate). Here are the possibilities, from best to worst:

(1) The government loses the lawsuit, though all such acts had already ceased
---i.e. Obama's a good guy, and has already ended an act that was tentatively treated as legal
(2) The government loses the lawsuit, and all acts cease
---i.e. Obama couldn't give up the other guy's toys, but respects the rule of law enough to do so after a court ruling
(3) The government loses the lawsuit, and such acts continue (creating a real criminal issue)
---i.e. I should have voted for someone else, no ifs, ands, or buts about it
(4) The government wins the lawsuit, though all such acts had already ceased
---i.e. Obama's a good guy, but we've laid some dangerous groundwork for the next Cheney
(5) The government wins the lawsuit and such acts continue
--- Ugh.

As of now, the status quo is essentially #5...the worst in my mind. Because the courts haven't yet ruled completely, the government is essentially acting as if this is legal (assuming the spying is continuing...of which I'm uncertain). So, essentially, the legality of the government's program and the fact that it hasn't been ruled illegal/unconstitutional...that stuff can't get any worse. The scope of the program could get worse, though.

[cousin it]

^^It is a violation of the 4th Amendment; it is illegal. Bush should have been impeached for this alone. And, if Obama is continuing the practice, he too should be impeached.

[freedom78]

^^It is a violation of the 4th Amendment; it is illegal. Bush should have been impeached for this alone. And, if Obama is continuing the practice, he too should be impeached.

I agree that it's illegal and, indeed, unconstitutional.

Impeachable is an altogether different breed.

[Bandita]

If I respond to this I will just look stupid so... what Freedom said so eloquently. (meaning it's probably imbedded so deeply at this point, that maybe even Obama didn't realize what he was taking on with this one?)

[Gomer Pyle]

Funny that people are now realizing that Obama is nothing more than a continuation of the "Bush Doctrine". Enjoy the "change"....