Saturday, December 29, 2012

Another, If Expected, Disappointment

When the House is controlled by Republicans, the White House by an (Eisenhower) Republican, and the Senate Majority Leader is a moderate-conservative Democrat, it shouldn't be surprising that

The Senate on Friday reauthorized for five years broad electronic eavesdropping powers that legalized and expanded the President George W. Bush administration’s warrantless wiretapping program.

The FISA Amendments Act, (.pdf) which was expiring Monday at midnight, allows the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

The House approved the measure in September. President Barack Obama, who said the spy powers were a national security priority, is expected to quickly sign the package before the law Congress codified in 2008 expires in the coming days. Over the past two days, the Senate debated and voted down a handful of amendments in what was seen as largely political theater to get Sen. Ron Wyden (D-Oregon) to lift a procedural hold on the FISA Amendments Act legislation that barred lawmakers from voting on the package.

In the end, the identical package the House passed 301-118 swept through the Senate on a 73-23 vote.

The American Civil Liberties Union immediately blasted the vote.

“The Bush administration’s program of warrantless wiretapping, once considered a radical threat to the Fourth Amendment, has become institutionalized for another five years,” said Michelle Richardson, the ACLU’s legislative counsel.

Amendments senators refused to enact included extending the measure for just three years, another one requiring the government to account for how many times Americans’ communications have been intercepted, and one by Wyden prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.

“The amendment I fought to include would have helped bring the constitutional principles of security and liberty back into balance and intend to work with my colleagues to see that the liberties of individual Americans are maintained,” Wyden said immediately after the vote.

The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. The court’s rulings are not public.

The government has also interpreted the law to mean that as long as the real target is al-Qaeda, the government can wiretap purely domestic e-mails and phone calls without getting a warrant from a judge. That’s according to David Kris, a former top anti-terrorism attorney at the Justice Department.

In short, Kris said the FISA Amendments Act gives the government nearly carte blanche spying powers.

Journalist and civil libertarian Glenn Greenwald reminds us

when seeking the Democratic nomination, then-Sen. Obama unambiguously vowed that he would filibuster "any bill" that retroactively immunized the telecom industry for having participated in the illegal Bush NSA warrantless eavesdropping program.

But in July 2008, once he had secured the nomination, a bill came before the Senate that did exactly that - the FISA Amendments Act of 2008 - and Obama not only failed to filibuster as promised, but far worse, he voted against the filibuster brought by other Senators, and then voted in favor of enacting the bill itself. That blatant, unblinking violation of his own clear promise - actively supporting a bill he had sworn months earlier he would block from a vote - caused a serious rift even in the middle of an election year between Obama and his own supporters.

Critically, the FISA Amendments Act of 2008 did much more than shield lawbreaking telecoms from all forms of legal accountability. Jointly written by Dick Cheney and then-Senate Intelligence Committee Chair Jay Rockefeller, it also legalized vast new, sweeping and almost certainly unconstitutional forms of warrantless government eavesdropping.

In doing so, the new 2008 law gutted the 30-year-old FISA statute that had been enacted to prevent the decades of severe spying abuses discovered by the mid-1970s Church Committee: by simply barring the government from eavesdropping on the communications of Americans without first obtaining a warrant from a court. Worst of all, the 2008 law legalized most of what Democrats had spent years pretending was such a scandal: the NSA warrantless eavesdropping program secretly implemented by George Bush after the 9/11 attack. In other words, the warrantless eavesdropping "scandal" that led to a Pulitzer Prize for the New York Times reporters who revealed it ended not with investigations or prosecutions for those who illegally spied on Americans, but with the Congressional GOP joining with key Democrats (including Obama) to legalize most of what Bush and Cheney had done. Ever since, the Obama DOJ has invoked secrecy and standing doctrines to prevent any courts from ruling on whether the warrantless eavesdropping powers granted by the 2008 law violate the Constitution.

Mother Jones' Kevin Drum has a different take, arguing

Glenn thinks that liberals have largely given up criticizing this stuff because we now have a Democratic president in the White House rather than George W. Bush, and I suppose that's part of it. But a bigger part, I think, is simply that it's all become so institutionalized. Back in 2004 and 2006, we were outraged because this was all so new. Today, after fighting and losing, it's just part of our brave new world, along with 3-ounce bottles on airplanes, unreviewable no-fly lists, and cops who demand to know what you're up to if you start taking pictures in public places.

As a country, we're now divided into two parts: those who aggressively support things like warrantless wiretapping because they're consumed with fear, and those who don't but have given up trying to fight about it. There's hardly anyone left still willing to tilt at this particular windmill. It's sad as hell.

Yes, liberals for the most part "have given up trying to fight about it" with "hardly anyone left still willing to tilt at this particular windmill."  But that's no act of God.  It's a confluence of a Democrat in the Oval Office- as Greenwald observes- and of having Barack Obama in the White House.

Perhaps President Obama has such an effect in part because the alternatives are so much worse.  Just as in the presidential race the choice was between the incumbent and a more dangerous alternative, so it is that 42 of 45 Republicans voting joined the President they despise and most Democrats in wantonly extending the national security state.  (Check out the east-west geographical split in the roll call vote.)  The GOP, whose tea party faction is obsessed with the Constitution and its Bill of Rights, gave Obama a pass in bypassing the Fourth Amendment.

The faith in Obama as a progressive may stem also from disbelief that the first black President- a constitutional lawyer and community organizer!- possibly could be anything but a child of the left.  Admittedly, the President, despite his actions and some statements to the contrary, periodically nurtures that favorable impression.

The most obvious example is the Affordable Care Act, a Rube Goldberg-inspired initiative whose main virtue is its superiority to the current health care system and considerable superiority to the harsh regimen Republicans dream of.  Union rights are another, inasmuch as the Democratic candidate for President in 2007 once promised (please control your laughter)

And understand this: If American workers are being denied their right to organize and collectively bargain when I’m in the White House, I will put on a comfortable pair of shoes myself, I’ll will walk on that picket line with you as President of the United States of America. Because workers deserve to know that somebody is standing in their corner.

When thousands of workers in Wisconsin picketed last year, President Obama couldn't find a pair of comfortable shoes.  But he did, eventually, manage to remark half-heartedly

Some of what I've heard coming out of Wisconsin, where they're just making it harder for public employees to collectively bargain generally, seems like more of an assault on unions.  I think everybody's got to make some adjustments, but I think it's also important to recognize that public employees make enormous contributions to our states and our citizens.

When Governor Scott Walker, who had run roughshod over the rights of middle class, working class, and lower class public employees, faced a recall, President Obama remained silent until the night before the election. Instead, his campaign spokesperson cautioned against expecting her boss to become involved, stating "If you think that the secret weapon here is sending President President Obama, then, you know, I'm pleased that you believe that."

Soon thereafter Obama, recognizing that he had to appear interested, tweeted (no cameras, please) "It's Election Day in Wisconsin tomorrow, and I'm standing by Tom Barrett. He'd make an outstanding governor. -bo."

Thanks, Bo. I hear all Portugese Water Dogs in Wisconsin supported Barrett.   And he failed to "stand by" Barrett because there would have been cameras.  Transformation apparently complete, the man who once promised to begin to slow the rise of the oceans and heal the planet now claimed less influence than a ward boss, labor official, corporate executive, or your next-door neighbor.

There always is just enough from Barack Obama to convince supporters it could be worse, and would be, with the other guys (or gals).   But the PPACA, drone signature attacks, labor rights, FISA re-authorization,  efforts to cut earned benefits, indifference to the poor, climate change, and abuses in the financial industry: the list goes on and on.  And on.    He might as well say "hey, it's not like I'm a Democrat or anything."

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