[Reader-list] Bush Surveillance Policies Live On In Obama White House

[Taha Mehmood]

Dear all

The full article is now available to us on the list, courtesy- S S Sandhu.
The article quite clearly suggests that the Obamaspeak of 'change' and 'yes
we can' may not necessarily result in actually changing some policies of the
Bush administration, especially those pertaining to surveillance.

Regards

Taha



SURVEILLANCE: OBAMA AND THE ISSUES
Bush Surveillance Policies Live On In Obama White House
The new president has changed his tune from the campaign trail on some
surveillance policies.
Saturday, March 21, 2009
by Shane Harris


Special Report
Obama's Agenda: Surveillance
Shane Harris



Has Obama held his position steady since the presidential campaign, made a
course change from his 2008 promises, or pursued an issue new on his agenda?
Read National Journal's guide to his surveillance agenda. Select other
issues in this series below.


Choose an issueInternet PolicyTrade Health Care
PakistanCounter-terrorismHousingGlobal
WarmingInfrastructure

It was February 12, 2008, and then-Sen. Barack Obama faced an easy vote. The
Senate was about to take up the hotly debated question of whether
telecommunications companies should be exempt from civil lawsuits alleging
that they helped the Bush administration illegally spy on Americans.
Opponents of the terrorist surveillance program, which bypassed federal law
calling for court-approved search warrants for such eavesdropping, brought
the suits, and Obama agreed with the litigants that if companies broke the
law -- regardless of the assurances they received from the government that
their participation was lawful -- they should be held to account. Obama's
opposition to the so-called immunity provision during his quest for the
Democratic presidential nomination solidified his support among liberal
activists, the technologically savvy Net-roots of his party, and burnished
his anti-Bush bona fides.

The Senate took up the controversy that morning, as an amendment to a
pending bill that would modify the Foreign Intelligence Surveillance Act.
(This was the law that the litigants accused the administration of
violating.) The proposed revisions to FISA would dramatically expand the
government's surveillance capabilities, giving it greater leeway to conduct
surveillance of terrorism suspects and other foreign groups without
obtaining individual search warrants from the FISA court. The communications
of American citizens would undoubtedly be caught up in that electronic
dragnet. Whether the immunity provision should be part of this new law was
on the table. Obama voted to remove it, putting him at odds with the
majority of his colleagues.

So, with the Senate in support of immunity, that left the question of
whether Obama would oppose the overall changes to FISA, which the Senate
took up later the same day. When the moment came to cast his vote, however,
Obama didn't vote at all. He was one of three senators to take no position;
the others were Hillary Rodham Clinton, then his chief rival for the
Democratic nomination, and Republican Lindsey Graham of South Carolina. John
McCain, the presumptive Republican presidential nominee, voted for the bill.

Obama had seemingly backed off his opposition to Bush-era surveillance
policies. His position was challenged again a few weeks later when the
candidate's top intelligence adviser said in an interview with National
Journal that he personally favored immunity for the telecom companies. John
Brennan's remarks ignited controversy, and some of Obama's supporters called
upon the candidate to dismiss him. That would affirm, they seemed to think,
Obama's loyal opposition to the legislation moving through Congress, which
Brennan, in the interview, said had become "embroiled now in a partisan
debate in some quarters."

Obama was still on record against immunity and through a spokesperson
confirmed that he thought the companies' liability was "more appropriately a
decision for the judiciary."

In July, almost five months after the immunity vote, Obama finally had to
face the music. The Senate took up another FISA-changing bill, which the
House had passed. It included immunity, and it would give the government
broad authority to monitor communications outside the traditional
search-warrant process. Sixty-nine senators voted in favor of the bill.
Obama was one of them. President Bush signed the bill into law the next day.

No Turning Back

Candidate Obama's reversal on warrantless surveillance was the first major
break with his most loyal supporters, and it remains a sore spot during the
first months of his presidency. On his second full day in office, Obama
earned some goodwill among the base by issuing two important executive
orders. One would close the U.S. prison at Guantanamo Bay within a year
(although the fate of the nearly 250 prisoners there remains very much in
question), and the other requires the CIA to follow the same interrogation
rules as the military. That order effectively barred waterboarding, a harsh
interrogation technique that intelligence officials say was rarely used but
that many experts say is torture, and certainly was a potent symbol of past
policies that Obama wanted to cleanly break from.

But on the hot-button issue of surveillance, Obama has shown no intention to
turn back or break in a new direction. Indeed, most of what the Bush
administration did under the cover of secrecy is now legal under the
surveillance law that Obama voted for last summer, seven weeks before he
accepted the Democratic nomination for president. Obama has chosen Brennan,
his onetime intelligence adviser and telecom immunity supporter, to be his
chief homeland-security and counter-terrorism adviser in the White House.
And in January, a federal Appeals Court strengthened Obama's hand when it
published its opinion that the executive branch can claim an exemption to
the Fourth Amendment's requirement for a court-ordered search warrant. If
the government is monitoring the communications of foreigners overseas, it
need not seek a warrant to do so, even if Americans are a party to those
communications, the court ruled. When it comes to his surveillance
authorities, then, Obama has clear sail
ing ahead of him and the wind at his back.


"The duty of the Justice Department is to defend statutes that have been
passed by Congress, unless there is some very compelling reason not to."
--Eric Holder


The opinion from the Foreign Intelligence Surveillance Court of Review --
only the second in the history of this panel, which was set up to review
FISA-related cases -- doesn't settle the issue of whether President Bush
violated the law when he authorized warrantless surveillance after the 9/11
attacks. Nor does it give Obama free rein to target Americans directly
without search warrants. The law for which he voted forbids it. "This was
not a blank check by any means," legal scholar Orin Kerr wrote of the court
opinion and its implications for future presidents.

Steven Schwinn, an associate professor of constitutional law at John
Marshall Law School in Chicago, also stressed that the court opinion applies
only to surveillance activities that Congress has specifically authorized in
the various FISA acts. "It said nothing about the president's inherent
Article II power to authorize the secret surveillance program," Schwinn
wrote. (Bush had asserted an "extravagant" interpretation of his
constitutional surveillance authorities, according to former Justice
Department official Jack Goldsmith, who threatened to resign in 2004 over
aspects of the surveillance program that he believed could not be supported
by law.) "Bush administration supporters who praise this opinion as a
vindication of Bush's sweeping claims of inherent Article II powers simply
misread the opinion," Schwinn wrote.

But just because Obama's berth is wide doesn't mean it's free of conflict.
The legal opinions justifying warrantless surveillance remain secret. And
electronic privacy and civil-liberties groups are still pressing the
president to circumvent the immunity provisions that he ultimately voted
for, a potentially tricky legal maneuver that would also hold tremendous
political consequences. Both McCain and Clinton questioned whether candidate
Obama had the requisite experience and fortitude to fight a global war on
terrorism; in that conflict, surveillance has been one of the United States'
primary weapons.

The Legacy Question

Obama faces pressure from his base to make a demonstrable turn away from
Bush-era policies. The Electronic Frontier Foundation, for one, wants the
administration to put the civil lawsuits against the telecommunications
companies back in play. Kevin Bankston, a senior staff attorney with the
group, said that could happen in any one of a few ways, all of which involve
the new attorney general, Eric Holder.

First, Obama could tell Holder to simply withdraw the government's current
motion to dismiss the lawsuits based on the immunity provision, reversing
course from the Bush Justice Department. Or, Obama could tell Holder to ask
the courts to temporarily stay the proceedings while the administration
comes up to speed on the cases and awaits the findings of several inspectors
general, whose reports on the warrantless surveillance program are expected
in July.

But there is a third route, Bankston said. Obama could instruct Holder not
to appeal a case that Bankston's group brought last December before a
federal District Court judge. It argues that the immunity provision violates
constitutional separation of powers because the attorney general -- not a
judge -- gets to determine unilaterally that any warrantless surveillance
was both lawful and deemed necessary to protect national security. If the
attorney general says that the surveillance met those criteria, then by law
a judge must dismiss any lawsuit against a telecom company.

It's doubtful that the judge who is pondering the case will pick that fight
with the new administration. Judge Vaughn Walker, the chief judge of the
Northern District of California, heard oral arguments before Obama nominated
Holder. "Why shouldn't the court wait to see what the new attorney general
will do?" the judge asked.

During his confirmation hearing, Holder gave the response.

"President-elect Obama was against the [immunity provision]," he said, "but
nevertheless voted for the statute that contained that immunity." The
immunity question is now a matter of law, Holder said, and "the duty of the
Justice Department is to defend statutes that have been passed by Congress,
unless there is some very compelling reason not to.

"It would seem to me," he continued, "that unless there are compelling
reasons, even given the opposition ... I don't think that we would reverse
course."

That could well be the new president's guiding mantra when it comes to his
broad, and now legal, surveillance powers.

This is the ninth in an ongoing series looking at an issue on President
Obama's agenda. The entire series can be found at
NationalJournal.com/agenda. Next week: Criminal justice.


On Tue, Mar 24, 2009 at 11:57 PM, Taha Mehmood
<2tahamehmood at googlemail.com>wrote:

> Dear all
>
> The article below seems interesting. Unfortunately I could not access
> the article because it is only available to subscribers. I would be
> grateful  to anyone on the list who subscribes to the National Journal
> and is willing to share this article with us.
>
> Regards
>
> Taha
>
>
>
> http://www.nationaljournal.com/njmagazine/nj_20090321_6471.php
>
> SURVEILLANCE: OBAMA AND THE ISSUES
> Bush Surveillance Policies Live On In Obama White House
> The new president has changed his tune from the campaign trail on some
> surveillance policies.
>
> by Shane Harris
>
> Saturday, March 21, 2009
>
> Barack Obama began backing off his opposition to Bush-era surveillance
> policies while running for president last year. Now that he's in the
> Oval Office, he has shown no intention of turning back or taking a new
> direction.
>