Eyes On The Spies: What Obama Can Do About Illegal Surveillance

With all the commotion and hubbub surrounding the personalities and gossip of Obama’s cabinet formation, and expression of everyone’s opinion on how that should proceed, little has been said about the actual policies and actions (other than Iraq) that should be implemented right out of the gate. One area that has been neglected is that of the illegal wiretapping and surveillance policies and practices that were instituted in the country’s name by the Cheney/Bush regime.

Our friends at the Electronic Frontier Foundation (EFF) have some ideas for the incoming Obama Administration in this regard, and they are pretty good.

President Obama can end the immunity process. Consistent with his previous opposition to immunity — then-Senator Obama voted in favor of Senator Dodd’s amendment to strip the immunity provisions out of the FAA altogether — Obama could instruct his new Attorney General to withdraw the government’s motion to dismiss the lawsuits based on the immunity statute. Or,

President Obama can temporarily freeze the immunity process until he has learned all the details about the NSA program. Consistent with his support of Senator Bingaman’s proposed FAA amendment to delay implementation of the immunity provisions, Obama could instruct his new Attorney General to ask the court for a temporary stay of the immunity proceedings. That would give the Administration time to review the classified details of the NSA program as well as the FAA-mandated reports about the program that are expected by this July from the Inspectors General of the Department of Justice, the NSA, and other agencies involved in the program. After having reviewed all the facts, the new administration can then re-evaluate whether it wants to continue to press for immunity in court, or drop its motion to dismiss and let the cases against the telecoms continue. Or,

President Obama can choose not to appeal if the immunity statute is found unconstitutional. If, after the hearing on December 2nd, Chief Judge Vaughn Walker of the federal Northern District of California agrees with EFF that the immunity statute is unconstitutional and denies the government’s motion to dismiss, Obama could instruct his new Attorney General to not appeal that decision to the Ninth Circuit Court of Appeals.

All of these are things Obama could do — on his own and without any help from Congress — to stop the implementation of the immunity scheme that he repeatedly opposed during his presidential campaign.

These recommendations aren’t EFF’s alone: as part of the transition roadmap published yesterday by a broad coalition of groups including EFF, seventeen different civil liberties organizations signed onto national security surveillance recommendations that included the proposition that President Obama should "[d]irect the Attorney General to withdraw the government’s motion to dismiss pending privacy litigation brought against telecommunications carriers for assisting with unlawful warrantless surveillance, or seek a stay of those proceedings until such time as the Attorney General, based on review of the Inspectors’ General reports required by the FISA Amendments Act, determines that a grant of immunity is appropriate."

We at EFF — along with many of Obama’s supporterswere sorely disappointed when he failed to uphold his promise to filibuster any bill that contained immunity, and instead reversed course and ultimately voted for passage of the FAA. But, as Obama himself said when defending his support for the FAA:

This was not an easy call for me. I know that the FISA bill that passed the House is far from perfect. I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush Administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That’s why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

As we all know, those efforts to amend the FAA by stripping immunity out of the bill or delaying its implementation failed, despite Obama’s support. But now, as President, Obama will have the power to make things right. By taking one of the above steps after he takes office on January 20th, Obama would prove that he meant what he said when he opposed telecom immunity, that he stands behind the votes he made against immunity, and that his claims of a coming "change" when it comes to reversing the Bush Administration’s excesses are more than empty rhetoric.

If Obama truly supports change — if he truly supports a more open and accountable federal government, where Americans have the tools to demand accountability for past abuses — then he should end the Bush Administration’s attempt to cover-up lawbreaking by the NSA and its telecom collaborators, and ensure that the judicial branch is finally allowed to rule on the legality of NSA program.

Some decent points. I would like to add a couple. The Obama DOJ could flat out withdraw allegations of "state secrets" in any instance that has been pled and is not absolutely necessary to national security. By what I can tell, that is going to be most of the cases. In a corollary, the Obama DOJ could declassify and otherwise release information and documentation that the Bush Administration wrongfully classified to brazenly obstruct justice and prevent plaintiff’s abilities to establish standing and the prima facie burden for their suits.

In short, the Obama could reset the table so that the scales of lady justice are able to find their own natural balance, as they were designed and intended to do.

However, for all of those that think this will be an easy call for Obama and his DOJ, it will not. There will be a lot of pushback from intelligence and DOJ personnel that were involved in the Bush/Cheney programs, there will some instances where there really are operational details that must be protected and, quite significantly, there is the issue of liability for damages. Yes, money is a big time consideration. The potential for damage liability could extend into the billions. It is a factor, and there is a very fair chance that the government is on the hook for most all of it, not the telcos. In the financial straits this country is in, do not discount that as a factor.

In short, there are many things that Barack Obama can do to right the wrongs of the Bush/Cheney administration on illegal surveillance and, specifically, on the imposition of retroactive immunity by the Bushies and a complicit (near criminally) Democratic Congressional Leadership. But will he do it? Time will tell.

It is time to lead, President-to-be Obama, and to do so for the right instead of from the right. Remind us what it is like to have an American Government that does the right thing instead of the politically expedient thing. Please.

33 replies
  1. NMvoiceofreason says:

    There’s a much bigger problem for the intelligence personnel. 50 USC 1809 gives them 5 to 10 years for each intercept without a warrant. From 2002 to 2008, at a relatively mild one thousand intercepts per day, that is over two million felonies. Bush will probably pardon them, but that still leaves them in limbo. Obama could re-adopt the “bright line rule”: that which touches American citizens or American territory requires a warrant application within 72 hours.

    Worse, he has the war crimes of torture and rendition. Doubtless Bush will pardon those too, but the International Court in the Hague will not. All it takes is one person (and there are many) to lead to indictments, starting at the top and working their way down (exactly the opposite of how we treat drug cartels).

    First comes the separation of those programs and personnel, along with real investigations by the IG’s, and the new AG. Thus has to happen to separate the new administration from the crimes of the old.

    Second come clear statements, in writing, stating what the US will do, and will not do. TIA (Total Information Awareness) is a great tool internationally, a police state when applied without the bright line rule.

    Note that the traditional “traffic analyst” reading of headers or phone numbers is no different than a pen register trace available without a warrant to any law enforcement organization, and does not constitute an intercept. Nor does recording of the information or call. It is only analysis of the contents, or listening to the phone call that constitutes an intercept.

    My guess is that Obama will not proceed to do anything on the immunity issue, but will instead leave it to the courts. He has no experience in intelligence matters, and will be told it is essential by people who know better, but see it as a necessary legal shield, similar to the old “Shamrock” project that copied all overseas cables (See James Bamford’s excellent books).

  2. WilliamOckham says:

    This is good advice from EFF, but even better from Bmaz. The ’state secrets’ thing is absolutely critical. It’s never been used to protect actual ’state secrets’, only government malfeasance.

  3. bmaz says:

    My guess is that Obama will not proceed to do anything on the immunity issue, but will instead leave it to the courts.

    Um, that is the whole point behind the post and the EFF call to arms: Left up to the courts in the current posture, there is likely to be adherence to the FISA Amendments Act which, unless the certifications already filed by the AG pursuant thereto are withdrawn, is going to serve to deny standing and dismissal of all of the consolidated suits with the possible exception of either al-Haramain or Hepting (neither of which is looking all that promising either under current posture).

    Furthermore, there is no participation of the US in the ICC/Hague, and the previous acts of Congress have granted immunity for the war crimes etc. Lastly, the statute of limitation has run on many other lesser crimes. I hope you are right, and I am wrong, but I fear you are severely overestimating the prosecution headroom available.

    • NMvoiceofreason says:

      The Congress of the US cannot grant immunity for war crimes prosecutions in the ICC. The US has refused to submit to the rule of law, and that should tell us something right there. I’m saying that Obama will be loathe to intervene in the proceedings before the courts, and EFF is not always right. There were reasons for FISA and reasons for the FISC. That delicate balancing act was blown to smithereens by the Dark Lord Cheney. Obama’s natural tendency seems to be to let the courts sort it out, I’m saying that given the briefings by the CCCI folks, he’s going to take a step back from the EFF position. You may be right to be pessimistic about prosecutions, but Holder’s nomination gives us some hope. The big question of the day is when they ask to extradite the war criminals Bush and Cheney for trial, will he risk being put in that same position himself later, or will he grant them asylum he does not believe they deserve?

  4. pdaly says:

    I like the sound of this.

    The truth finally coming out (I mean being ‘confirmed’) would be great.

    However, would Republicans argue against prosecutions based on those truths (well, yes, I know they would), but could they successfully argue that court cases, based on facts that are “no longer states secrets,” are cases analogous to ex post facto cases?

    Do we then counter that we are prosecuting with perfect knowledge of obstruction of justice on the part of Bush and his DoJ?

    Yes, money is a big time consideration. The potential for damage liability could extend into the billions. It is a factor, and there is a very fair chance that the government is on the hook for most all of it, not the telcos. In the financial straits this country is in, do not discount that as a factor.

    The government could look for creative ways to pay us. Instead of handing out money, why not hand out …banks? The government sort of owns them now. Could create new ones. And competition is good for all except the few currently left standing that thought they had a gravy train.

    • NMvoiceofreason says:

      Just because information has been published [based on facts that are “no longer states secrets,”] does not release them from their oath to protect classified information. They will not be allowed “to confirm or to deny” the facts as published.

      Just because the public knows does not mean the truth can be publicly acknowledged.

    • pdaly says:

      Reports I just read stated he began trembling and then collapsed. And the he had not yet regained consciousness at the time the ambulance stretcher removed him from the room.

  5. Loo Hoo. says:

    In a corollary, the Obama DOJ could declassify and otherwise release information and documentation that the Bush Administration wrongfully classified to brazenly obstruct justice and prevent plaintiff’s abilities to establish standing and prima facie for their suits.

    But will the information and documentation be there?

    Too bad about Mukasey…

    • NMvoiceofreason says:

      No, it will not. Evidence will be shredded and put into burn bags. It is a crime, but without evidence there will be no prosecutions. From the Republican point of view, if you are never prosecuted, did you really commit a crime?

  6. JohnLopresti says:

    EFF has a pony in this race, of course. Another facet is the issue of Hepting’s amusing expert witness and the wrangling VWalker endured concerning the admissibility of some of that evidence, which, as far as I know, remains sealed from the public’s view. Telcos have great liquidity, like the corner gasStation entities, although the industry remains somewhat less consolidated, telcos being more like nationalized industries even postdereg in many countries. Maybe my distant perspective of familiarity with some of the early internet companies and many global telcos is incomplete and eccentric, but I think this is an area BO can approach with some interest with an eye to renewal of the energy it once released, a decade ago; as a way to recharge some of the depressed businesses currently slogging thru the downturn. I am no longer current in developments in telcoworld, though I understand their longterm concerns technology will displace and atrophy them, or perhaps, better said, simply shift profit centers and alliances. I noticed that Reed Hundt was part of the advisory clan BO maintained in the campaign, and would expect buckets of guidance from Reed, a former chairman of FCC. Some of the first evidences of BO’s initial plan for the modernization of Fisa will be his FCC nominees. But on both telcoville and FCC, BO has a grand chance to engage congress for a re-look. This borders on some of the strategizing we are starting to see with the legislative leadership, as well, as the research and finally hearings, and then drafting a new look for Fisa and telco dereg may be part of what the 111th choses to do, maybe in its second session, though. I think letting VWalker write a typically thoughtful review likely will be salubrious for the entire remake process. I wonder if Nacchio is laughing about now, but I doubt it. The fortuneteller is saying BO will weigh matters with all deliberate haste in many spheres, but I hope he claims some of the highground on wiretapping, like he will do with torture; some of these measures slipped out of the usual degree of control.

  7. Mason says:

    I don’t know about the rest of you, but my euphoria over Obama’s election victory has completely disappeared in the wake of his appointments and fealty to the false god of bipartisanship. The bipartisan lack of interest and support to hold the Bush administration accountable for any of its constitutional, international, and criminal transgressions together with the continued unraveling of our economy with no end in sight and the lack of a healthy and robust sector that might lead us back to solid ground, has nearly driven me into the deepest recesses of my closet to rock back and forth on my haunches while sucking my thumb.

    I no longer entertain great expectations for significant change. How can Obama change anything that matters when his highest priorities are don’t rock the boat and emphasize bipartisanship? Therefore, I am expecting Obama to apply the that-was-then-and-this-is-now exception to the stick-to-your-guns rule and announce that he has decided not to attempt to revise any aspect of the FISA bill he reluctantly voted for during the campaign, including telecom immunity, because he believes such an attempt “will cause discord at a time when all of us should be focused on coming together in the spirit of bipartisanship to create real change we can believe in.”

    Well, it was a great ride while it lasted. Maybe now I’m finally free of my addiction to Obama’s pipe dream and I can get some work done. What the hell were we smoking in that pipe, anyway? That was some good stuff. Anybody know where . . . Never mind.

    • bmaz says:

      Well, i always deep down had the suspicion this was where we were headed; not that makes anything any easier or better to take. Heh, actually would have been better to have had the hope for at least a while.

      The bright side is that it will, at its worst, still be light years better than the wilderness we have wandered in for the last eight years. That is something. Something good.

      • BearCountry says:

        Exactly right. My view is that no matter who is President we are going down the road domestically that w set us on so clearly. We were already on the greater surveillance road, just not so blatantly. The best that Obama can do is slow us down. The bureaucrats who actually have the power to do the surreptitious work will be loathe to give it up.

  8. john in sacramento says:

    Check it out

    Verizon Employees Snoop on Obama’s Cellphone Records

    An unspecified number of Verizon Wireless employees snooped into President-elect Barack Obama’s personal cellphone records, the company announced Friday.

    Verizon immediately suspended all employees who accessed the records and will take “appropriate disciplinary action” against employees found to have looked at them without authorization.

    Obama had a simple flip phone, not a smartphone, meaning the interlopers found only records of phone calls and text messages. The account has been inactive for several months, the company said.


  9. plunger says:

    Obama cannot, and will not, do anything to investigate or truly STOP the warrantless wiretapping. That’s because it would reveal the foreign country that installed the equipment that enables it, from the White House to Your House, and how they have used it.

    Welcome to the Foreign Surveillance Society.

    Don’t forget to thank your (s)elected officials for enabling it.

  10. neurophius says:

    What Obama can do about illegal surveillance: Tell all federal employees and contractors that they are to follow the law. Period.

  11. bobschacht says:

    There has been an odd duality about this whole business:

    Democrats are afraid to take issues like Bush’s impudent response to subpoenas to court, for fear that they would lose in the Roberts SCOTUS, and then have on the legal books a decision that they don’t want.

    The administration, however, has lost almost every case that goes to court, from Libby to Hamdan.

    Consequently, the DOJ has been busily obstructing justice by preventing the court’s involvement (most of the time).

    Maybe letting the Courts sort things out is not such a bad idea– and once the Obama administration gains control, they can do a lot of good just by stopping the obstruction of justice. Of course, I would prefer that they strike a more aggressive posture on administration abuses, but it would be a start just to open up the floodgates.

    And if they are really truly scared of looking like meanies taking revenge, they can appoint some independent prosecutors to do the nasty work for them, so they can’t be accused of partisanship.

    Bob in HI

  12. BearCountry says:

    I have a further question. Who is the bad guy and who is the good guy in the struggle between the DoJ and NYC police over illegal surveillance? How will that work out under the new DoJ?

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