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Obama and Wiretapping: A Brief History

John on March 8, 2009 at 9:53 pm

Barack Obama taught Constitutional Law for ten years, so when he says things like this you know he’s serious:

This Administration also puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.

That means no more illegal wire-tapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

This Administration acts like violating civil liberties is the way to enhance our security. It is not. There are no short-cuts to protecting America, and that is why the fifth part of my strategy is doing the hard and patient work to secure a more resilient homeland.

That was back in August of 2007 when he was still expected to lose the Democratic nomination to Hillary.

Just a week later there was a vote on warrantless wiretapping in Congress. A bipartisan coalition in the Senate (which included 16 Democrats) gave George Bush a rare win. Barack Obama, who along with Hillary voted against the bill, was quoted in the NY Times:

“Everybody was afraid they might be branded as soft on terrorism,” Senator Barack Obama of Illinois, a Democratic presidential candidate, said Monday while speaking to Iowa voters…In an interview on Monday, Mr. Obama lamented that Democrats had “become comfortable with the rhetoric George Bush uses.

Just a few months later, Barack Obama let everyone know how he really felt about George Bush at an MTV/My Space Forum broadcast on MTV (video here):

You know I taught constitutional law for 10 years at the University of Chicago, so…um…your next President will actually believe in the Constitution which you can’t say about your current President. [applause]

In today’s environment in particular I want Supreme Court Justices who are vigilant about civil liberties. Because I think that when people are afraid — and terrorism has created fear — then that’s when the greatest danger to civil liberties happens. It’s easy to be for civil liberties when there are no threats. It’s when there are threats that you start seeing civil liberties chipped away at. So I want a President…I want a Supreme Court that is not just giving the President a blank check for whatever power grab he or she is engaging in.

By the way that also means that when I’m President one of the first things I’m going to do is call in my attorney general and say to him or her I want you to review every executive order that’s been issued by George Bush — whether it relates to warrantless wiretaps, or detaining people or reading e-mails, or whatever it is — I want you to go through every single one of them and if they are unconstitutional or they are encroaching on civil liberties unnecessarily we are going to overturn them…we are going to change them.

Not a lot of wiggle room here. Barack Obama believed George Bush didn’t believe in the Constitution and warrantless wiretaps was one of the chief reasons he cited.

But a funny thing happened to Barack Obama on the way to Washington. By the Summer of 2008, with the nomination in the bag, he reversed course and voted for a bill which indemnified telecom carriers for cooperating with government wiretaps. People on the left cried foul. Obama’s campaign issued a statement which was reported in the Washington Post:

“Senator Obama has said before that the compromise bill is not perfect,” his campaign said in a statement. “Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, Senator Obama chose to support the FISA compromise.”

In an effort to placate thousands of angry supporters, some of whom were organizing a protest on his own website, Obama also penned his own statement:

“This was not an easy call for me,” he wrote on his Web site Monday. “And going forward, some of you may decide that my FISA position is a deal-breaker. That’s OK. But I think it is worth pointing out that our agreement on the vast majority of issues that matter outweighs the differences we may have.”

Having won the election, Obama now faced the question of wiretapping from a new perspective. In mid November, the NY Times James Risen and Eric Lictblau (the reporters who broke the wiretapping story in the first place) wrote a piece speculating about what Obama might do once in office:

Advisers to Mr. Obama appear divided over whether he should push forcefully to investigate the operations of the wiretapping program, which was run in secret from September 2001 until December 2005.

Mr. Obama recently started receiving classified briefings on intelligence operations from Mike McConnell, the director of national intelligence. The Obama transition team declined to say whether Mr. Obama had been briefed on the agency’s eavesdropping operations.

His transition team also declined requests to discuss his current views on domestic surveillance or how his administration would respond to legal challenges growing out of it. But there has been no shortage of debate among lawyers involved in the challenges to the program.

“I don’t think President-elect Obama embraces Dick Cheney’s theory of unfettered presidential power,” said Jon B. Eisenberg, a San Francisco lawyer involved in one lawsuit against the wiretapping program. “So if President-elect Obama doesn’t embrace that theory, one would expect a change in the direction of how the new administration handles this litigation.”

It made sense given his language during the primaries. But as it turns out, that Barack Obama — the one who actually believed in the Constitution — was history:

In a federal lawsuit, the Obama legal team is arguing that judges lack the authority to enforce their own rulings in classified matters of national security. The standoff concerns the Oregon chapter of the Al-Haramain Islamic Foundation, a Saudi Arabian charity that was shut down in 2004 on evidence that it was financing al Qaeda. Al-Haramain sued the Bush Administration in 2005, claiming it had been illegally wiretapped…

The Obama Justice Department has adopted a legal stance identical to, if not more aggressive than, the Bush version. It argues that the court-forced disclosure of the surveillance programs would cause “exceptional harm to national security” by exposing intelligence sources and methods.

In court documents filed hours later, Justice argues that the decision to release classified information “is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power . . . to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access.” The brief continues that federal judges are “ill-equipped to second-guess the Executive Branch.”

That’s about as pure an assertion of Presidential power as they come, and we’re beginning to wonder if the White House has put David Addington, Mr. Cheney’s chief legal aide, on retainer. The practical effect is to prevent the courts from reviewing the legality of the warrantless wiretapping program that Mr. Obama repeatedly claimed to find so heinous — at least before taking office…

[W]e are relearning that the “Imperial Presidency” is only imperial when the President is a Republican. Democrats who spent years denouncing George Bush for “spying on Americans” and “illegal wiretaps” are now conspicuously silent. Yet these same liberals are going ballistic about the Bush-era legal memos released this week. Cognitive dissonance is the polite explanation, and we wouldn’t be surprised if Mr. Holder released them precisely to distract liberal attention from the Al-Haramain case.

President Obama owes George W. Bush an apology and the rest of us an explanation.

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