Obushma Watch Vol. 99: National Security Letter Edition

Reason Contributing Editor Julian Sanchez, writing at the American Prospect, looks at another Obama change promise lost, to, as Sanchez puts it, "restore some of the checks on government surveillance power that had been demolished in the panicked aftermath of the September 11 attacks."

More from Sanchez on this byzantine story of how governments tend to want the power to surveill, and will do whatever it takes to keep what they got and keep trying to get more:

[L]ast week...a Democratic-controlled Congress quietly voted to reauthorize three controversial provisions of the USA Patriot Act without implementing a single one of the additional safeguards that had been under consideration -- among them, more stringent limits on the national security letters (NSLs) Obama had once decried. Worse yet, the vote came on the heels of the revelation, in a blistering inspector general's report, that Obama's Office of Legal Counsel (OLC) had issued a secret opinion, once again granting retroactive immunity for systematic lawbreaking -- and opening the door for the FBI to ignore even the current feeble limits on its power to vacuum up sensitive telecommunications records.

NSLs...allow investigators to obtain a wide array of financial records and telecommunications transaction data without a court order -- revealing the phone numbers, e-mail accounts, and Web addresses with which their targets have been in contact....

But as a detailed report released last month by the office of the inspector general (OIG) revealed, between 2003 and 2006, the FBI sought to stretch its NSL powers beyond even these ample boundaries. Investigators obtained thousands of records from telecommunications providers using a made-up process called an "exigent letter" -- which essentially promised that a proper NSL would be along shortly. Among those whose records were obtained in this way were reporters for The Washington Post and The New York Times -- in violation of both the law and internal regulations requiring that the attorney general approve such requests.

Still more incredibly, investigators sought records pertaining to more than 3,500 telephone numbers without any process at all, simply requesting records verbally or via scrawled Post-It notes....

Following standard practice, the OIG sent a draft copy of its report to the FBI for comment before publication. Understandably distressed by the watchdog's finding that analysts had broken the law repeatedly and systematically over a period of years, FBI attorneys scrambled for retroactive cover. As a heavily redacted section of the report explains, they hatched a novel theory, according to which some broad class of records was actually exempt from the requirements of the ECPA, and therefore eligible to be handed over "voluntarily" by the telecoms. Even in the freewheeling days of the Bush administration, apparently, nobody had come up with this particular rationalization for evading federal privacy statutes -- but it would still serve as a retroactive excuse if Obama's Office of Legal Counsel could be persuaded to bless the new reasoning.

Shamefully, the OLC appears to have done just that in a secret opinion issued in January...

And the depressing but true conclusion, after noting that the latest Patriot renewal will have to be reconsidered again in a year:

The question, given the muted public reaction to the abuses that have already been disclosed, is why we should hope legislators will be any more willing to expend political capital resisting the intelligence community's demands a year from now. The "choice between the liberties we cherish and the security we provide" may be a false one, but in the current political climate, it appears to be an easy one as well.

Sadly, yes.

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  • Almanian||

    I heard that people in Kentucky think Jesus wants us to be subject to surveillance, and that this should be taught in public schools.

    But that may just be a rumour...

  • Seer||

    Meet the new boss...

  • ||

    Wrong Almanian. Religious nuts in Kentucky are very much against even the most common sense security like us looking at your daughters through the naked camera at the airport. These Luddites disagree with the scientific consensus that more security = less terrorism. They are especially paranoid about the government wiretapping everyone and keeping in something called "a master database" due to the fact that the president is black. One can image that racist types and luddite religious nuts are not happy with the way things are going as this country moves into more modern and scary times where us more intelligent people are constantly adapting to the new threats of terrorism and climate change.

  • Almanian||

    How very backward of them

  • ||

    right

  • Suki||

    I await SugarFree's opinion on this matter.

  • peachy||

    Hey hey ho ho
    The OLC has got to go

  • ||

    How is that whole "liberaltarian" thing working out for you guys?

    Like chimps in suits, that joke is always funny. At least the Republicans are honest about their desire to do this kind of shit. Right or wrong that at least creates the opportunity for honest debate. But when the Democrats run around screaming "fierce moral urgency" and "fascism" for eight years only to do the exact same shit when they are in in power, the Democrats have pretty much destroyed all possibility of reasonable debate on this subject. When the Republicans reauthorize this bill in 2013, what are the Democrats going to be able to say about it? Nothing. George Bush created this. And the Democrats have now insured that it will last forever.

  • ||

    John, you have every right to beat this dead horse over and over and over. I'm completely serious. Any fuck who voted for Obama needs to be ridiculed, derided, and insulted every fucking day until the scumbag starts crying in their Wheaties every morning.

    Fuck you, Obama voters. FUCK YOU. Every hope you had that he would be better was WRONG. Completely wrong, because god damn it, he's shaping up to be worse.

    I'm not saying you should have voted for McCain--at all. But voting for Obama means you are stupid motherfucking suckers of the highest order. You're morons. You're laughable, contemptible fools. Sorry, but it's true.

  • ||

    Obama is actually doing more damage to this cause than Republicans did. It is like when someone like McCAin votes for some big government program. It totally fucks anyone who objects to big government. It is one thing when a Democrat does it. They are supposed to support that kind of thing. But when a Republican does it, it allows the other side to portray everyone who disagrees as the lunatic fringe. Saying "even Republicans support big government program X" is a very effective argument.

    The same thing is true here. The Republicans enacted this stuff. And some people objected to it. And we ought to be able to fight that issue out in the public sphere. But now that Obama has continued all of these programs, everyone can say to the opponents of them "even the Democrats continued these measures" meaning that only the fringe object.

    Obama is fucking civil libertarians worse than McCain ever could have. Had McCain done this, civil libertarians could have said "yeah he is doing it, he is a Republican. That is why we have to get Republicans out of office". But now, thanks to Obama, they have no way to make that argument and just look like they are on the fringe.

  • ||

    This sounds like a ideology of hate. We need to be more inclusive if we wish to expand the libertarian movement beyond the living-in-moms-basement crowd. This was the problem with the Rothtard branch back in the day, the Rothtards wanted to force everyone to adhere to strict dogma guidelines and we finally got rid of those jerks, now you homophobes are trying to bring it back.

  • Mad Max||

    'When the Republicans reauthorize this bill in 2013, what are the Democrats going to be able to say about it?'

    If history is any guide, leaders of the two major political parties are 'able to say' anything that's convenient to them at the time, no matter how inconsistent with their prior behavior and prior statements.

    Also, the leaders of the two major political parties greatly enjoy exchanging accusations of hypocrisy - 'you complained when Bush did it!' 'but *you* supported Bush when he did it!' 'did not!' 'did too!'

    One might think that both parties have lost the moral standing to accuse anyone of hypocrisy, but they still do, of course. I believe the term is 'metahypocrisy.'

    Meanwhile, we're left with the question - not 'who supported this policy,' but 'is this policy a good idea?'

    I'd rather that Demopublican leaders take the right position, even if it means contradicting their prior, wrong position.

  • ||

    If the Republicans were running around screaming "fascism" about the Democrats continuing policies they started, you would have a point. But they are not doing that. But, rest assured come 2013, the Democrats will once again find their voices in objecting to this.

  • Mad Max||

    Republican activists have not consistently refrained from the 'fascism' accusation against Democrats. Jonah Goldberg wrote a book about it.

    You could say, 'well, Goldberg has some good points,' and I would agree. I would also point out that you could find Republicans who support many of the things Goldberg labels fascistic (eg, Wilsonianism, to take one example at random).

    Don't get me wrong - the Punch and Judy show is highly entertaining. And I'm not positing *complete* moral equivalence between the two major parties and the policies they purport to stand for. But I notice that partisan rancor seems to become, if anything, more embittered as the differences between the two parties get narrower.

  • ||

    " I would also point out that you could find Republicans who support many of the things Goldberg labels fascistic (eg, Wilsonianism, to take one example at random)."

    Bush II named Wilson as his favorite president once. I have not heard a lot of Republicans dissing Wilsonian foreign policy or Federal Reserve creationism.

  • ||

    The Republicans accuse the Dems of fascism, but that is because of their social policies. Go find me one Republican who has suddenly found this kind of thing objectionable now that Democrats are doing it. I don't know of any.

    The Republicans at least have a consistent position regarding counter terror measures. Libertarians don't like it. And they probably shouldn't like it. But, at least it is a consistent position.

    The Democrats in contrast have no consistent position on this issue. They are convinced that it is the end of Democracy when they are out of power. But, continue the exact same policies while in power. At least on this issue, it is the Democrats who are the hypocrites.

  • Mad Max||

    You’re being unfair to Republicans.

    When he was a Republican Senator in the 1990s, John Ashcroft denounced Clinton administration proposals to expand the surveillance power of federal agencies.

    In the speech, Ashcroft said:

    ‘The Clinton administration would like the Federal government to have the capability to read any international or domestic computer communications. The FBI wants access to decode, digest, and discuss financial transactions, personal e-mail, and proprietary information sent abroad -- all in the name of national security. To accomplish this, President Clinton would like government agencies to have the keys for decoding all exported U.S. software and Internet communications. . . .

    ‘The protections of the Fourth Amendment are clear. The right to protection from unlawful searches is an indivisible American value. Two hundred years of court decisions have stood in defense of this fundamental right. The state's interest in effective crime-fighting should never vitiate the citizens' Bill of Rights.’

    In other words, yes, some Republicans *did* object when 'democrats [were] doing it.'

    Bear in mind that the Clinton administration was promoting these measures, at least in part, under an 'anti-terror' rationale. Recall the Oklahoma City bombings, the subsequent debate over balancing security and liberty, the *Antiterrorism* and Effective Death Penalty Act of 1996, etc. Terrorism was on the national agenda and there *was* debate on the balancing of liberty with national security in that context.

    And Ashcroft was still willing to invoke the phantoms of lost liberty and defend the Fourth Amendment.

    The, of course, 9/11 changed everything, and we discovered that terrorism existed, so we could no longer afford the 'September 10 mentality' manifested in Ashcroft's speech.

  • Mad Max||

    Then, of course

  • ||

    Or perhaps doing these things in response to a foreign enemy is less objectionable to some? Yes, 9-11 did change everything in some people's mind. It is not like Ashcroft became AG in January 2001 and started doing the same thing.

    Love it or hate it, the Republicans have been consistent about this since 9-11. Go find me one place where they are criticizing Obama about this. And I will concede the argument.

  • Mad Max||

    You're assuming what is yet to be proved - that 9/11 'did change everything.'

    Did 9/11 change the Fourth Amendment? Did the Fourth Amendment mean one thing at the time of Ashcroft's speech and another thing after 9/11?

    Let's be blunt - if John Ashcroft, Democrat, had made the speech I quoted in the 1990s, it would have been cited by Republicans as an example of the Democratic Party's unreliability on the subject of Keeping This Nation Safe From Terrorism.

  • Mad Max||

    To put it another way:

    Was Ashcroft right at the time he spoke? If so, did he become wrong after the attacks of 9/11?

    Why, exactly, must Democrats observe a statute of limitations in pointing out the civil-liberties positions of political leaders in the past?

    If Democrats have to observe a statute of limitations, at least Republicans should be required to observe it, too. And that means no more citations to Abraham Lincoln (suspending habeas corpus to Save the Union!) or FDR (his statesmanlike decision to intern the Japanese Americans!).

    I'm sure Michelle Malkin anxiously awaits your reply.

  • ||

    I am not saying the Republicans are right. That is not the issue. I am saying they had a legitimate change of heart after 9-11. You think they are mistaken about that. And maybe you are right. But, that is not the issue. The issue is were they being hypocritical and changing for reasons other than legitimately being concerned after 9-11.

  • Mad Max||

    Democrats, like Republicans, can come up with plausible-sounding reasons for changing *their* positions.

    If Republicans can claim, with a straight face, that until 9/11 they thought Clinton was exaggerating the terrorism problem, then Democrats can say something similar - Bush had such credibility problems that of course I assumed he was exaggerating about the need for strong counterterrorism measures, but now that we have a progressive, unifying president who *truly* supports civil liberties, now of course we realize that we can trust him with these extra powers. Of course, we have to keep the Republicans out of office because they would just abuse their authority.

    Or they could take from the Republican playbook. Remember the Republican justification for voting for deficit spending and new entitlements - 'we have to do this to stop the Democrats from demagoguing this issue!' The Dems can say something similar - 'if we repealed the Patriot Act the Republicans would simply denounce us and use it as a wedge issue to get back into power!'

    Once I'm disposed to give your own party the benefit of the doubt, then it's fairly easy to come up with rationalizations for why *my* party's change of position is sensible and consistent, while the *other* party's changes of position are hypocritical and opportunistic.

  • Mad Max||

    Once I'm disposed to give *my* own party the benefit of the doubt, etc.

  • ||

    And if the Republicans were as craven as you say, they would be scoring political points against Obama over this. But they are not. They are supporting him, which tells me they actually believe these things to be necessary.

  • ||

    That is complete nonsense. The Republicans thought Clinton was full of shit. Then, 2800 Americans died and they realized, damn I guess he was right. The Democrats thought Bush was ending Democracy. Then they won an election and decided those powers were a-OK. Those two circumstances are not comparable.

  • Mad Max||

    'The Republicans thought Clinton was full of shit. Then, 2800 Americans died and they realized, damn I guess he was right.'

    I don't recall Republican leaders putting it that way.

    If your interpretation is right, then OMG Republican obstructionism blocked the passage of essential antiterrorism laws, thus leading to 9//11! So vote Republican!

    But I would like to know precisely which Clinton administration proposals, if enacted, would have stopped 9/11?

  • ||

    I am not sure anyone took terrorism seriously before 9-11. I didn't. 9-11 taught us to think the unthinkable. If Republicans were just craven and looking to score political points, they would have re-discovered the religion of civil liberties once Obama took office just like the Democrats did when Bush took office. But they haven't. You can point to 20 year old statements by John Ashcroft all you want, but so what? If what you are saying is true, you should be able for find Republicans today savaging Obama over this. And you can't.

  • Mad Max||

    'I am not sure anyone took terrorism seriously before 9-11.'

    Then I'm confused - how did 9-11 prove that Clinton 'was right,' as you claim?

    They're savaging Obama for being a hippie law professor who wants to give Miranda warnings to terrorists. Obviously, evidence that Obama is continuing the Bush administration's draconian policies would not fit that particular narrative.

    Bill Ayers' terrorist acts were over 20 years ago, yet for some reason Republicans didn't feel obliged to observe a statute of limitations on that particular issue.

    FDR's internment of the Japanese-Americans is over 20 years old, but that certainly doesn't stop Republican cheerleaders from citing it.

    Lincoln's civil-liberties abuses in the Civil War are more than 20 years old, but that doesn't stop Republican cheerleaders from invoking them.

  • ||

    Well no serious politician ever opposed the patriot act anyway. Obama only opposed the first one when he was wet behind the ears, once he got serious about statesmanship he was able to see the real danger to our government. We can't have people running around and saying whatever the hell they want. Anarchy is not a serious option in spite of what the kooks are preaching.

  • ||

    I'm beginning to think we need a new Iron Law. Something along the lines of:

    You can't take power from a living politician.

    Not pithy enough.

    Perhaps:

    Power can only be pried from a politician's cold, dead hands.

    A little help here?

  • ||

    Power, once granted, is never relinquished...without violence.

  • ||

    What about the simpler "Power is never given up voluntarily."?

    "The Precautionary Principle of Power" is nicely alliterative.

  • ||

    That's too mild. I was going for something a little punchier.

  • ||

    It occurs to me that each elected official should be wired with one of those exploding neck thingees, like we saw in The Running Man. If, within a given 24-hour period, more than, say, 60% of his constituents voted for the neck brace to explode, it would.

  • Jersey Patriot||

    Milton Friedman beat you to the punch:

    There is no such thing as a "temporary" government program.

  • ||

    I really don't want to miss out on the apparent necessity of violence here. 535 heads on the Capitol Lawn, and all that.

    An updated version of "The tree of liberty is watered with the blood of tyrants", that kind of thing.

  • ||

    The thing that gets me is how many people still believe that the "Patriot" Act works, that it "keeps us safe". And what will they say when the day comes that it becomes obvious--even to a moron--that it is not keeping us safe? "Aughh, we've got to strengthen it!"

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