Terrorism

Obama's Cloak of Invisibility

How secrecy frustrates challenges to counterterrorism tactics

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Back in 2007, when he was running for president, Barack Obama criticized George W. Bush's expansive vision of executive power, saying, "I reject the view that the president may do whatever he deems necessary to protect national security." The day after taking office in 2009, Obama declared that "my Administration is committed to creating an unprecedented level of openness in Government."

Those two positions went together, because secrecy requires power and power thrives in secrecy, as Obama himself has been demonstrating for the last four years. Three recent cases illustrate how breaking his promise of "the most transparent administration in history" has helped Obama break his promise not to use national security as an excuse to violate civil liberties.

After 9/11, Congress loosened restrictions on national security letters (NSLs), a kind of administrative subpoena, first authorized in 1986, that the FBI uses to demand information from phone companies, Internet service providers, and financial institutions. According to the Justice Department's inspector general, NSL "requests" skyrocketed from a total of 8,500 between 1986 and 2000 to more than 56,000 in 2004 alone.

The Obama administration has made liberal use of NSLs, which in 2010 allowed the FBI to peruse information about 14,212 American citizens and permanent residents—a new record—without bothering to get clearance from a judge. If you were one of those people, the odds are that you will never know, because NSLs are almost always accompanied by instructions that prohibit recipients from discussing them.

Last week a federal judge ruled that such gag orders, under which companies are not even allowed to confirm that they have received an NSL, violate the First Amendment. "The FBI has been given the unilateral power to determine, on a case-by-case basis, whether to allow NSL recipients to speak about the NSLs," U.S. District Judge Susan Illston wrote. "As a result, the recipients are prevented from speaking about their receipt of NSLs and from disclosing, as part of the public debate on the appropriate use of NSLs or other intelligence devices, their own experiences."

Just as Americans do not know when the government uses secret subpoenas to look at their telephone, Internet, and financial records, they do not know when the government secretly listens to their conversations or reads their email exchanges with people in other countries. Thanks to legislation that Obama supported as a senator, the government can conduct such surveillance without a specific warrant as long as its official target is located outside the United States and the collection of foreign intelligence is "a significant purpose" of the snooping.

Do such loose rules pass muster under the Fourth Amendment? Since it's hard to prove you have been subjected to secret surveillance, we are unlikely to get an answer from the courts. Last month the Supreme Court, in response to a challenge by lawyers, journalists, and human rights activists who worry that the privacy of their international communications has been compromised, said they lacked standing to sue because "they have no actual knowledge of the Government's…targeting practices."

Secrecy frustrates challenges to counterterrorism tactics even in the case of Obama's most startling claim to executive power: the authority to kill people he identifies as members or allies of Al Qaeda. In January a federal judge ruled that the Freedom of Information Act does not require Obama to disclose the Justice Department memos that explain the legal rationale for this license to kill.

U.S. District Judge Colleen McMahon expressed frustration with this result, saying, "I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret." In his State of the Union address the following month, Obama promised to make his "targeting" of suspected terrorists "even more transparent." I'll disbelieve it when I don't see it.

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  1. Apparently the fourth estate has been issued a gag order as well, since they seem unable to ask the president his justification doing all those things he had issue with his predecessor doing.

    1. are they unable to ask or more inclined to go along with Obama’s actions since he’s their guy? Team first, you know.

      1. The media are unbiased professionals and as proof, I’ll put forth that its a fact they are unbiased professionals.

  2. If that mugblood gets the Stone of Resurrection and the Eldar Wand we’re all in trouble.

    1. I can hardly wait till Obamacare kicks in and becomes a national security directive, after all, national security is all about them having enough money to be nationally secure.
      So if anything under Obamacare is questioned, the answer will be we can’t tell you.

  3. At long last one of my lefty acquaintances is facing the facts and admitting that obama is worse than Bush. I wondered how far it would have to go and what it would take for them to start facing reality. I guess I know now; summary execution by presidential fiat.

    Mind you, this is a lefty who actually used to be a classical liberal. The new breed, facsists a la Tony, arent likely to follow suit.

    1. one of my more liberal friends is really against Obama on the Drug War thang – doesn’t understand why the Feds are doing what they are doing.

      1. Doesnt understand? Or cant admit to themselves that the dems are all about money and power, principle be damned?

    2. I’m just waiting for ardent Obummer supporters to admit that he is worse on his best day than Bush was on his worst. Then hell will have officially frozen over.

    3. Fascists a la Tony, when they aren’t trolling, fall back on one singular argument: BUSH, therefore, NOT OBAMA. It’s infuriating for the sheer amount of nonsense packed in to such a small bit of idiocy.

      1. Bush has no power anymore except as a rhetorical covering fire on the retreat. The issue now is who IS in power. I am not a Bush fan, but I don’t see how GWB is pertinent to any discussion now beyond the precedents he set and as a cautionary tale against overseas military adventurism.

    4. “At long last one of my lefty acquaintances is facing the facts and admitting that obama is worse than Bush.”

      In SF, this is simply not happening. Nor is Pelosi seen as the power-grabbing hag she is.

  4. Candidate Obama says one thing; President Obama does another. It’s the same with nearly every president.

    But next time it’ll be different!

    1. It isnt so much that….people are used to that. It is the unprecedented disparity and arrogance involved here. I was stunned when the obamacare debacle was going on. All I could do was watch his supporters in awe of the denial, rationalization and hypocrisy.

      It is stunning to me that only a few are just now coming around.

      1. I imagine it’s a little traumatic when your world crumbles around you. Or, they really just don’t give a shit as long as it’s their team in control.

      2. on a rational level, it would be stunning. But this is emotional, and denial is a powerful tool when one is so deeply invested in a politician. Supporters cling to the chimera they saw in ’08, refusing to believe that all the pretty words and meaningless promises were just that.

  5. Obama’s Cloak of Invisibility

    I thought this was going to be about how it’s so hard to find someone who actually knew Obama in college.

    1. U.S. President Barack Obama, due here for his first official visit next week, graduated college in 1983; yet, none of the 25 or so alumni of his class who are now living in Israel remember laying eyes on him.

      Haaretz

      1. Considering Obama can’t seem to remember what Israel looks like, turnabout is fair play, I say!

  6. It’s not a cloak he has. It is a ring. And not one of the nine for the human kings either.

  7. “Past claims of presidential discretion is no guarantee of future results.”

  8. The day after taking office in 2009, Obama declared that “my Administration is committed to creating an unprecedented level of openness in Government.”

    A serious question here: Has Obama uttered a single truthful word as president? Ever?

    Considering the near vertical, spiral descent of the quality of presidents on a linear timescale, I fully expect that Greg Stillson will be our next leader of the free world.

    1. A serious question here: Has Obama uttered a single truthful word as president? Ever?

      When Obama says something, it’s automatically true. It’s like when the Pope speaks ex cathedra; he is infallible.

      Didn’t you know that?

    2. Has Obama uttered a single truthful word as president?

      I submit that “Uh” is such a word.

      1. And “I”, “me”, “my”, “mine”.

        1. Yes, definitely those.

        2. I doubt even those.

          1. Depends what you mean by truthful, you’re probably thinking of honesty. Truth is a where you arrive after a socialist has applied the correct dose of coercion. Obama is still getting us to the truth.

    3. Sure he has, if you parse his words carefully you’ll see he told the truth. The public jumps to conclusions that they shouldn’t. For example – he rejects the notion the president can do whatever he wants. No, but he believes the president can do some things he wants. Or, unprecedented level of openness makes you think he will be totally open? No, the “unprecedented level” could also be lower than ever seen before. Come on, you know how
      words can be used to convey opposite meanings.

      1. +1,

        He has absolutely brought an “unprecedented level of openness”. Remember he was a psuedo-Professor of Law. He knows how to parse a phrase.

    4. “A serious question here: Has Obama uttered a single truthful word as president? Ever?”

      Wrong question.
      Every word is true; it’s when he puts them together into sentences that they form lies.
      Now, he’s probably uttered a sentence that isn’t a lie, like when he mentions he has a wife and kids, but that’s about the limit.

  9. the Supreme Court … said they lacked standing to sue because “they have no actual knowledge of the Government’s?targeting practices.”

    This continues to blow my mind. It’s like saying the police can’t arrest the Beltway sniper because they have no actual knowledge of his targeting practices.

    1. You don’t have standing because you don’t have standing. I don’t see what’s so hard to understand…

      1. I see you’re holding up one finger ….

        1. Now you’ve got it!

          But seriously, if the Court actually cared they could carve out an exception along the lines of “capable of repetition yet evading review” since this is potentially are very serious infringement on someone’s civil rights.

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  11. secrets are lies. how many of the government’s secrets do you think they’re proud of? when they’re proud of something, they find a time or way to share it. *real* transparency would fix so many more problems in this country than any ideology or scare tactic (terror/drugs).

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