Tuesday, April 7, 2009

Obama's New-Old Police State

Candidate Barack Obama ran on a platform that railed against the unitary executive--especially the Bush administration's attack on civil liberties in the form of such acts as warrantless wiretaps. Now however, it seems President Barack Obama's Department of Justice is not only continuing the Bush adminstration's alarming tactics, but has plans on expanding it even further. Welcome to Barack Obama's new-old police state. When we've collectively finished up the koo-laid and "ooohing" and "awwwing" over Michelle's wardrobe, we might stop to ask ourselves if this is the change for which we campaigned, donated and voted.

More after the fold...

It's been building now for a while. Lost in the mainstream news behind mega-billion dollar bank bailout outrage and significant victories like the closing of Guantanamo, the Obama administration's justice department under Attorney General Eric Holder has been engaging in some questionable legal tactics.

As mcjoan notes over at dailykos:

In the past three months, in three separate cases, the Obama DOJ has used the same arguments that the Bush administration Justice Department used to attempt to stop judicial review of extraordinary rendition and warrantless wiretapping.

Mcjoan points out that in the Mohamed v. Jeppesen extraordinary rendition case, the Obama administration used the Bush administration argument of "state secrets" to have the case dismissed. In the Al-Haramain v. Bush, a wiretapping case , Obama's DOJ invoked the Bush administration defense of "state secrets" again, to actually block access to information that could expose warrantless wiretapping. And now, mcjoan points out, the entire legal defense for illegal wireptapping is expanding.
Late Friday, the Obama DOJ actually went the Bush administration one argument further, in a third case. In Jewel v. NSA, the Electronic Frontier Foundation is "suing the National Security Agency (NSA) and other government agencies on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records." The Obama administration filed its first response to the suit Friday, demanding dismissal of the entire suit.

It seems to many that the Obama DOJ, in its arguments, is going out of its way to protect the Bush administration's Terrorist Surveillance Program (TSP), which has been accused of sweeping up masses of American citizens in a wiretapping dragnet. Further, the Obama DOJ argues that only "willful violation" by a government agent on any warrantless wiretapping would create a liability to the US. This effectively means that unless the government voluntarily provides information that it has been spying on you, it is immune from any legal action. The Electronic Frontier Foundation goes as far as to call Obama's illegal spying program "worse than Bush."

Glenn Greenwald at Salon.com examining the Obama DOJ brief concludes something similar:
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."

So the presidential candidate who campaigned on protecting civil liberties, is not only refusing to go after the Bush administration's illegal activities but attempting to push the invasion of privacy upon American citizens to new heights? What in the name of COINTELPRO is going on?

For some like Newsweek's Howard Fineman, it is an Obama administration attempting to placate a fickle intelligence community:
Obama and his people in the White House do not want to antagonize the intelligence community because they need them to support them in the War on Terror and to get the President's job done in the world right now.

As Fineman puts it, the Obama administration is making this Faustian pact for larger motives--throwin civil liberties under the bus rather than reining in his intelligence community. But that doesn't seem to explain everything, something Fineman himself readily admits, as he points out a more troubling motive, one that many warned cheerleading Republicans during the Bush administration's power grab: no president is going to want to give up or return privileges granted, or seized by, a former president.

Glenn Greenwald warns that these are all basic elements of the unitary executive theory espoused by Bush and Cheney, refashioned for a new administration:
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.

Mcjoan echoes much the same summary and warning:
It's difficult to read the administration's brief in any other way than a reinforcement--even an inflation of--the unitary executive, or to attribute it to Bush holdovers. This is first of the cases in which the DOJ attorneys aren't carrying over arguments from the previous administration--they are initiating this case. And it appears that the promises of last summer and fall when FISAAA was being argued were pretty damned empty.

Of course, for the Obama DOJ, this may be perfect timing. Just as the American populace was reeling from the attacks of September 11th and easily pliable to accept or simply turn a blind eye to an assault on its civil liberties, so might an American citizenry beaten down by a spiraling economy, two wars and (for some) still drunk in euphoria over the Nov 4th victory, lull itself into a type of complacency as its government shifts and changes the Constitution to its liking. This must be what Naomi Klein meant by "shock" and those who would take advantage of 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.
--Electronic Frontier Foundation (EFF)

Some useful links:

Electronic Frontier Foundation (EFF)

Electronic Privacy Information Center- Wiretapping

Obama, the ICRC Report and ongoing suppression
It is impossible for Obama to end the dark Bush/Cheney era if he is the prime agent preventing disclosure and accountability.

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