Third Party & Independents Archives

Bushier than Bush

For years peace loving individuals have been rightfully upset about President Bush’s abuse of our Constitution in response to the War on Terror. To date, President Obama has changed the name of this action, and little else. Except for the fact that he has attempted to acquire even more power in defense of these actions than even President Bush dared push for. Is this because President Obama is more creative or is it more of a natural progression to fascism that our duopoly is driving us towards?

Last year our Democratic controlled congress legalized the wiretapping that the Bush administration was doing and absolved all of the telecomm companies of any wrongdoing. Originally, then Senator Obama stated that he would filibuster any bill that gave the telecom companies immunity. He later backed off of this threat. However, the original perpetrators, the Bush administration officials who started the program in secret without congressional authority, would be held accountable, we were told.

Over the past year, the Senate intelligence committee has examined this issue, along with the need to bring the warrantless surveillance program within the law. We closely studied the facts, the documents and the alternatives to liability for the companies. Ultimately, we concluded that if we subject companies to lawsuits when doing so is patently unfair, we will forfeit industry as a crucial tool in our national defense. So we crafted legislation to do two important things: modernize the Foreign Intelligence Surveillance Act so the program is monitored by the courts with proper checks and balances, and keep the focus over legality where it belongs -- on the government.


Second, lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House's year-long push for blanket immunity covering government officials.

The EFF took them at their word and sued. They understood that the existing lame-duck Bush administration would stall, so they waited, patiently, for the incoming Obama administration to help their cause. They were very very surprised. Not only did the Obama DOJ use the same exact arguments as the Bush administration did on keeping vital documentation out of the lawsuit, they invented newer and even more outrageous claims that heaped even more power onto the executive branch that even Bush dared not attempt. The filing on April 3, 2009 says it all.

As Glenn Greenwald points out:

But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.


This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance. Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of "state secrets" to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself.


It is hard to overstate how extremist is the "soverign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying. As EFF's Kevin Bankston put it:

This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.

So not only is Obama making the exact same arguments that his supporters excoriated Bush for, and has done several times already in other lawsuits, but he is taking it to another level. However, it is not the only time he has done a one-up on Bush in his short administration.

For years the left has been besides themselves with the number of signing statements that Bush signed while in office. They were numerous and many of them skirted giving the president more power than was constitutionally provided for. That is why some are a little confused by President Obama's first signing statement that gave the executive branch a de facto line-item veto, something that is clearly unconstitutional. According to Talk Left:

President Obama's signing statement and declared intention to not follow certain provisions of the Omnibus Spending bill are a de facto line item veto. I would argue that the very fact that instead of relying on clear Supreme Court precedent, as the President does in the first part of his signing statement, and instead of being a declaration of what the law may mean in a hypothetical scenario, as many generalized assertions in signing statements are, the specificity of and the stated and express declaration to NOT abide by the law make this signing statement, in this procedural aspect, as bad or worse than President Bush's signing statements.

When signing statements are merely blather with no practical or promised effect, then I doubt there is a real constitutional question. But when a signing statement, as here, instructs a Cabinet officer, in this case, the Treasury Secretary, to disobey a law, then we have a problem.

Power. That has been an increasing theme with this administration. The President seems to want to aquire more power, not just for himself but his cabinet members as well. Not even for just these two areas but wanting to control access to the internet, increase the use of executive privilege,give Treasury Secretary the power to take over businesses, attempt to politicize the census, etc.

The question is, will the people keep giving in to these abuses of power or will the time come soon where the honeymoon ends and people start demanding that the executive branch be kept in check. Will the congress end its love affair with their president and start putting more teeth into their interactions with the executive branch? And if so, how much damage will be done before this occurs?

Some on the left are speaking out. Some are putting country above party. I find it unfortunate that there are so few...

Posted by Rhinehold at April 9, 2009 9:20 PM
Comment #279931

Why I share your concern the problem that I see is how does President Obama keep the State Secert of how America gets the information needed to keep America safe and deal with the abuse of power by the Federal Government Employees.

For why a public trail may be wanted by some in this case. I see the problem as an internal one that should be handled by the firing or writing up of those who violated the policy. So who is right and who is wrong is not a black and white issue nor IMHO should it be.

Now, should this be the end of it or be swept under the rug in order to keep National Security is a political question that I can answer. For having been leaked that some abuses have happened and without greater oversight these same abuses may continue. I would like to see President Obama and Congress make a report available so that Our Grandchildren can read about the stupid things done by some in the name of National Security. Since 20-40 years would be more than enough time for America to find a better way of getting the information needed to keep us safe from the Enemy within and out side our borders.

Especially, seeing that Americans did not need to know everything about the spying of the Council of 12 in the 70’s to know that the system had to be changed. For if I am not mistaking isn’t some of that material still sealed today from the eyes of the public record?

Posted by: Henry Schlatman at April 9, 2009 10:15 PM
Comment #279933

Good one sided perspective article, Rhinehold. What are the Obama administration’s perspective and words on these issues?

A more balanced review including the Obama administrations words on these issues would provide objective readers an easier path to making up their own minds, rather then dismissing this article as one sided. I am sure the Obama administration has a different view of what is taking place here, and includes things like time, priorities, short and long term reform objectives, as well as perhaps Obama changing his perspective on some of these issues now that he is privy to information and secret information he did not have as a candidate for president.

Your article’s perspective may be entirely justified, but, it is not possible to know that for us readers without the Obama side’s response and perspective.

Citing Obama’s lack of actions on some of these issues to change Bush’s precedents does not necessarily equate Obama motives to leave Bush policies in place, which is the conclusion of your article. The fact that he has not yet changed these policy positions does not logically result in the conclusion that he won’t.

Obama has not yet taken action on the illegal immigration issue, but, it hardly means he intends to leave the status quo in place, or to follow the past actions which have led to a failure to control illegal immigration, (as many GOP talking heads are now making the illogical argument for). The truth of it is, illegal immigration is not the priority he is devoting his time and attention to in these first months of his presidency. He has announced he intends to research and gather information from the various perspectives on this issue later in 2009 in preparation for pulling together a comprehensive approach to the problem. A far cry from what talking head critics are illogically arguing; that he intends to follow the failed prescriptions of the past.

And btw, Obama has said there is a justified use and purpose for presidential legislative signing memos, but, he intends for his to be far fewer and not secret as was the sometimes the case in the previous administration. The fact that he vows not to engage in secretive signing memos is an enormous difference between this president and the last; this president committed to justifying his signing memos to the public that elected him.

Posted by: David R. Remer at April 9, 2009 11:51 PM
Comment #279948


Good article. It is indeed frightening when one side can bitterly complain at what they see as abuses by their politcal enemies, then accept as the necessity of expediency when their own hold the reins. Are conservatives guilty? Yep. Does that make it right for others? Nope.


Are you going to argue that there has not been a move to either keep the powers of the imperial presidency or to just relabel issues and thereby claim to have solved the problem? (“overseas contingency operation” “manmade disaster”, etc.)

Posted by: Lee Jamison at April 10, 2009 10:02 AM
Comment #279953

While these arguments sound very grand and conspiratorial, I’m having trouble seeing a conspiracy here.

Benjamin Franklin was known to regularly open mail and read it.

Similar things happened during the civil war.

I know for fact that since WWII, all communications signals are monitored as needed and are not private by any means.

So what exactly is the great violation here?

I know in theory and courtrooms there is the grand facade of privacy. In reality, if you want true privacy you tell no one, or depend on personal secrecy to protect your privacy. Every decade this becomes more and more difficult. At some point we may be able to read brain waves and thought process ( No, inspite of a few sensational articles claiming this, it isn’t possible at this point), until then keep what you want private by not sharing it in public or semi public spaces.

There is still privacy, just not on a telephone or internet tube.

Posted by: gergle at April 10, 2009 11:08 AM
Comment #279954


So, spying on Americans is ok now, because it wasn’t long ago when you said something like:

Apparently Qwuest refused. Bravo for them! Shame on AT&T and BellSouth those sniveling dogs for selling out. Sign me up for the class-action lawsuit against them.

I don’t think this is quite to the level of the KGB, but it’s got Tricky Dick and J. Edgar-The Tranny all over it. It makes me wonder what GW and Dick wear at night in the cloister of their private halls. I always thought J. Edgar was so interested in spying because he was hiding so much and needed the leverage to keep from being outed. I wonder what else Dirty Dick and Bush are hiding from us.

Anyone that votes to maintain the Republican hold on Congress needs to have their heads shaved and be tarred and feathered for being traitors to America. Neil Young has it dead on target again. Investigate and then Impeach.

Obama is trying to assert that not only can he NOT turn over the information needed for the lawsuit to go forward based on the same ‘state secret’ argument that you were upset with then, that no one in the government can even be sued by the citizens unless they willingly release information that they gain from spying on American citizens.

Come on, admit it, had Bush suggested the exact same thing, you would be calling for his impeachment again, wouldn’t you?

I think that this is a real telling situation for finding out who is an Obamabot and who really wants to stand up for liberty and freedom in America, the old arguments against Bush were political, not based in anything real, for those people.

Posted by: Rhinehold at April 10, 2009 11:30 AM
Comment #279958

Oh, and a good one from David who said:

You don’t get it. I don’t know the reason the Court did not review the ACLU case, there can be many including another case they plan to review which encompasses the same legal questions. Or it could be the case that this sometimes Conservative Court won on this decision in favor of GOP Big government tactics and strategies toward individuals. But, that will change with he next president, thank, goodness.

And when it didn’t change, I am accused of writing a ‘one sided article’. David, are we supposed to just ‘assume’ that President Obama is doing the exact opposite of his actions? His administration is not speaking on the topic (partly because the news media is not interested in embarrassing him, yet) but even Sen Byrd and many on the left are raising questions about this, it is not something that can just be attributed to the right who, quite frankly, would be hypocrites to do so…

Posted by: Rhinehold at April 10, 2009 11:45 AM
Comment #279959

The problem with the premise of this article is that, like many, it rests on the whole “that’s not change we can believe in” meme.

Which is not to say that What Obama’s done here is entirely good, at least as far as the states secrets go. But does it mean Obama’s just like Bush? The question is whether this become a chronic occurrence, whether Obama’s policies become as chronically secretive as Bush’s were. I will not venture a guess as to what motivated this claim of state secrecy, but I will also not credit an inference for which this is the sole evidence.

The Signing statement is arguably legitimate, because what Obama’s basically saying is that while Congress has legitimate oversight powers, the executive branch is not supposed to be run by Congress. Congress can’t tell all the bureaucrats what to, unless they pass a law to explicitly regulate their actions.

This is a legitimate separation of powers issue, and there is legal precedent for Obama’s point.

This is unlike the multiple signing statements where Bush unilaterally declared certain parts unconstitutional.

If we’re going to make comparisons, lets make them with well-calibrated comparisons, not glib “tu quoque” arguments.

Posted by: Stephen Daugherty at April 10, 2009 12:12 PM
Comment #279962


First, in regards to the state secrets thing, it doesn’t mean that Obama is just like Bush, it means he is WORSE. That’s not a good area to be in, is it?

As for the signing statement, it is clear that Obama is attempting to create for himself a de facto ‘line item veto’ which is clearly unconstitutional. In all of Bush’s signing statements he never veered into that area. Again, he is WORSE than Bush.

I’m not sure why you feel that these aren’t ‘well calibrated’ comparisons, Stephen. And these, along with the other areas I have already addressed in this and other articles, show a pattern of saying one thing and doing another.

Should the memos be released and the suit by the EFF go forward? It seemed like you were saying yes just a couple of days ago and now you are balking? Should the President be able to sign himself power that is unconstitutional? I personally don’t think so.

I’m sorry Stephen, you stated two days ago “The damage to this country regarding torture has already been done. Part of undoing that damage entails facing the truth of what was done. That can’t happen if we continue to lie to ourselves, and continue to have the government lie to us.” But, since Obama ha said it is a state secret issue AND it doesn’t matter because the citizens can’t sue for redress, you’re ok with that now?

And no, this is NOT the first time Obama has used this argument since he has taken office. This is an ongoing pattern that the DOJ is participating in, once in office giving up power is not something easily done.

Posted by: Rhinehold at April 10, 2009 12:37 PM
Comment #279963

Come on Stephen, can you say something negative against Obama just this once, something a little more harsh than ‘not entirely good’?

Posted by: Rhinehold at April 10, 2009 12:38 PM
Comment #279965

Rhinehold said:

I’m not torn at all.

As a classic liberal (libertarian) it is perfectly clear that we have a set of rules and codes that the government must live by. They can not just be simply ignored. If during a time of war or need the government goes through the specific set of rules to allow increased surveilance, then it must do so. It cannot simply ignore these processes as it sees fit to do so, otherwise NO limits or laws are hard-fast and dependable. Any could be ‘resoned’ around.

So, if the administration broke those laws, they should be punsihed. If not, if they stayed within the laws then even though we might disagree with the actions, they were legal.

Really, it is just that simple. I guess I don’t understand the dilema.

Posted by: Rhinehold at December 22, 2005 10:43 PM

You always prefaced your remarks about Bush on how you disliked him, prior to defending him. Of course now you are appalled that Obama prefers to live in the present rather than digging up the past. Your comments in the past were not too concern about how the administration was conducting itself, or how the Patriot Act or the Fisa Courts were utilized.

By your comments, we should not be concern if the courts uphold the administrations positions - “I’m not torn at all”, even if we disagree with them. Gee, I wonder what has changed since then?

Posted by: Cube at April 10, 2009 2:21 PM
Comment #279967


There is nothing at all different in my statement as what we have now. If the administration (Bush) broke the rules, they should be punished! That is what this lawsuit is all about, determining if they did break that law. Bush went out of his way to ensure that the documents necessary to determine this were hidden away and now the Obama administration is doing the exact same thing, only on top of it they are claiming that citizens can’t determine through the courts if they did break the law!

I *STILL* don’t understand the dilema, Cube. Perhaps you could help me, where did I defend the Bush administration? I state that I disagree with the actions, but if they were legal, they were legal. Are they legal? WE STILL DON’T KNOW. I would like to know, I have been hoping that this EFF lawsuit would help determine this and get us going on either punishing those who broke the law or ending the debate if they didn’t. So why is Obama blocking it?

By your comments, we should not be concern if the courts uphold the administrations positions

You need to reread what you quoted. I never said I wouldn’t be concerned about it, only that it was legal and we couldn’t find them doing anything illegal if they hadn’t done anything illegal. When I said “If not, if they stayed within the laws then even though we might disagree with the actions, they were legal.” I meant just that. That if they were legal, they were legal.

Again, I’m not torn, it is just that simple. Let’s have the court case and find out one way or the other and then MOVE ON. If we don’t like the law, we can change it. If they were guilty, we can punish them. But as it stands now, we are further away from finding out than we were 3 months ago. :(

Posted by: Rhinehold at April 10, 2009 3:02 PM
Comment #279969

If you were not torn then, you should not be torn now. President Obama is making the same case as the previous administration. The difference is, that by doing so President Obama is not allowing his administration to appear to be dragged into what will certainly be considered by some as partisan politics, even if it is addressed in the courts.

The courts, “I believe”, have upheld in the past this same argument for the previous administration that the present administration is making. So what has changed for you to become so recently incensed? I still disagree with the changes that were made in FISA, and how the previous administration utilized it. But I believe, but I could be wrong, that this administration does not want to get bogged down in prosecuting or appearing to go after the previous administration in any substantial way, as it would appear as partisan politics, and counterproductive to addressing the current problems we are now facing.

Posted by: Cube at April 10, 2009 4:17 PM
Comment #279972
If you were not torn then, you should not be torn now. President Obama is making the same case as the previous administration. The difference is, that by doing so President Obama is not allowing his administration to appear to be dragged into what will certainly be considered by some as partisan politics, even if it is addressed in the courts.

I’m not torn. I want to see the evidence to determine if the previous administration broke the law. The Bush administration blocked those attempts by claiming ‘state secrets’ and Obama, after saying he wouldn’t is doing the same thing, and then going one further and saying that no one can sue for redress of violating any spying laws.

The courts, “I believe”, have upheld in the past this same argument for the previous administration that the present administration is making.

No, the courts had no say because they can’t get access to the documents. Basically, until the case can get pushed to the Supreme Court to challenge the previous and now current administrations on the state secrets argument, we will not know.

So what has changed for you to become so recently incensed?

I’m not sure you are actually comprehending what is going on, Cube. I was against the administration before blocking access to the documents necessary to determine if there were any violations of the law. I am *STILL* against that. What you quoted previously was a defense of not claiming that the administration had broken any laws without us finding out if they had. A reasonable stance, I believe, one I still hold. I *STILL* don’t know if anyone in the Bush administration has broken the law or not.

If you are content with people possibly breaking the law and getting away with it for political expediency so be it. But I don’t care if it was Obama or McCain in office atm, they should allow the courts to see those documents and determine if criminal activity took place. And it appears that this is the feeling with many on the left. Or, it was until we determined that the Obama administration is the one being the roadblock now and the true colors are displayed.

For the record, for about the 10th time now since you are apparently missing what it being said, I have not said in any way that I supported the Bush administration spying on Americans OR breaking the FISA laws, if he did. I stated quite clearly that if it is determined that no one in the administration broke the laws, we should stop trying them for that. Otherwise we punish them to the fullest extent of the law.

Apparently for some it was just a game of politics and not about what was legal and right what wasn’t.

Posted by: Rhinehold at April 10, 2009 4:31 PM
Comment #279973
we have a set of rules and codes that the government must live by. They can not just be simply ignored. If during a time of war or need the government goes through the specific set of rules to allow increased surveilance, then it must do so. It cannot simply ignore these processes as it sees fit to do so

Cube, btw, this statement makes it quite clear. There are rules and codes that the government must live by, even during a time of ‘war’. If the rules allow for increased surveilance, then it is allowed to do so. If not, they can’t just ignore the law and do it anyway.

I have changed no opinion and am not applying different rules to anyone. If you don’t mind, read what is written and comment on that, not on what you WANT me to have said.

Posted by: Rhinehold at April 10, 2009 4:35 PM
Comment #279977


First, in regards to the state secrets thing, it doesn’t mean that Obama is just like Bush, it means he is WORSE. That’s not a good area to be in, is it?

Oh, you wouldn’t want him any other place, would you? Heh-heh.

Calibration: If one side of the balance tips slightly down, and the other side goes through the roof, we have a calibration problem.

The Bush administration had a dense and troublesome history of constitutional excesses, the legacy of which, Obama is dealing with here.

The irony of this case maybe that Obama is approaching things with exactly the kind of care that his detractors predicted he wouldn’t have. To wit:

Likewise, Obama has ordered his attorney general to review all 23 Bush era assertions of the state secrets privilege. Administration officials say they’re in a bind. The fate of most of the cases hinge on the successful application of the privilege, and so in deciding to retract the privilege, the administration fears it will set a precedent that will weaken what President Obama believes is a lawful extension of the executive’s authority to protect national security information.

Administration officials say that Obama wants to find a case where he can retract the privilege without harming the privilege.

My sense has been that Obama is a lawyer, and he’s doing his best to untangle the mess that Bush has left without doing harm himself. He’s a civil libertarian by philosophy, so I don’t think his backing of state secrets is motivated by a sudden hunger for the power. I’ll deal with this more later.

Posted by: Stephen Daugherty at April 10, 2009 5:39 PM
Comment #279978


Are you sure that was me? While it sounds polemic enough to be me, I don’t recall that post, and have no clue how to search my posts.

I would’ve voted for Bush’s impeachment based on the 2000 election alone. The man should not have been president.

My point, which I have made before, is that regardless of the legal fineries, privacy on phones or computers does not, and never has existed. No government that is capable of spying on you will not. Democratic or not. Intelligence is power. Prosecution and or persecution is another issue, however. Regardless of the outcome, spying on an obviously easily tapped communication form will continue.

Yes, a company that resists what any would consider illegal action has my respect. It doesn’t change reality or my caveat.

Posted by: gergle at April 10, 2009 6:27 PM
Comment #279979

“can you say something negative against Obama just this once”

R-man, it’s apparently against the rules. A little while ago, someone literally went insane because I was reading The Nation in a public place, which apparently is not in sync with the agenda. One article recently criticized him a little over sending more troops to Afghanistan and a few other things.

Posted by: ohrealy at April 10, 2009 7:15 PM
Comment #279982

Lee, Like Obama, I like to know what I am talking about before I say anything.

The Law has been changed. The law as interpreted by Bush granting him covert surveillance of Americans has been revised absolutely requiring Judicial oversight and warrant before the President may wiretap Americans.

So, Obama is not keeping the same standard as Bush. And your comment’s critique of a partisan opponent before doing your homework, speaks for itself.

Posted by: David R. Remer at April 10, 2009 8:17 PM
Comment #279983

Rhinehold said: “And when it didn’t change, I am accused of writing a ‘one sided article’. “

If we are talking about domestic surveillance of Americans, the law has changed, and a judge now oversees, by law, any such surveillance with the issue of a warrant. Which the Constitution always called for, but, Bush et. al. chose to reinterpret these provisions. A law was passed expressly preventing a president from interpreting the Constitution on this matter in any way other than, the president is required to obtain a warrant before surveilling American citizens in the U.S.

I critique your article of failing to present all the relevant facts and presenting both sides. Your article contains no Obama rebuttals to its poorly researched critique. It is therefore, one sided.

Posted by: David R. Remer at April 10, 2009 8:25 PM
Comment #279988

I thought that the President needed these reasonable powers to adapt the laws and practices to the realities of the 21st Century technology used by terrorists.

Unlike the liberals on this blog, what I thought last year is what I think now. It is interesting to see their passionate defense of the Bush policies now that they are called Obama policies.

I have to admit that I am a disappointed and a bit surprised at the extent of partisan thinking. But from a practical point of view, I am glad of it.

Back when President Bush was doing the things referenced above, I thought it was necessary for the security of our country. I thought that the left was undercutting that security. Now that they have come over to the right side, we can move forward.

Rhinehold is consistent. While I disagree with his position, I have to respect his integrity. You liberals should just cut your loses on this one. We have established your loyalties; we are only quibbling about the price.

Posted by: Christine at April 10, 2009 9:14 PM
Comment #279989

Governments collect information on potential enemies. Smart people are recruited to do these jobs. Smart people are able to defeat barriers, be they legal or technical. That works on the side of terrorists as well. If you join destroy xyz protests, and societies, publicly aver for revolution, eventually someone will report you. You will be watched. If you are truly devious and smart you will defeat surveillance. if you are lazy and stupid, you will be caught.

While it may be significant to some about the legalities, I think it is a distraction. What matters to me, is what happens after they arrest you.
Should you cooperate with a spy agency if you feel surveillance is wrong? No. Should you cooperate if you feel a real threat may be defeated? Probably, yes. It’s a murky. fluid area at the edges of cat and mouse strategies. I want to catch the destructive creeps. I want to stop political persecution. It’s always a judgement call.

Posted by: gergle at April 10, 2009 9:18 PM
Comment #279995

I don’t think that’s necessarily the way he’s trying to be consistent.

According to the Marc Ambinder article, his intent is to avoid creating a court ruling which undermines state secrets that truly need to be kept secret.

For my part, new powers in terms of surveilling technology require new methodologies for assuring compliance with the pre-existing civil liberties.

I find myself here disagreeing with both the position that this is a betrayal of his promises to reduce Bush’s overreaching legacies, and that it is a vindication of those legacies. What I believe is that Obama is having to balance priorities and situations that don’t fit in the nice neat boxes that media strategies and campaign promises make for people.

I’ve long said and have been consistent in saying that there’s more to good politics than getting the words right. Realities matter. If what Ambinders article says in true, he’s defusing a big problem that the Bush administration’s abuses have left behind, one that if carelessly treated could cause problems for our country.

This isn’t some merely partisan game. The sides don’t particularlly matter. We have to do better than speak eloquently, we must understand and act eloquently, with actions that do meaningful good. If that means doing the politically unpopular, so be it. If it means creating contradictions with with campaign promises, so be it. Those promises are only good to be kept if keeping them helps.

Politics is not about simple political abstractions. It is how people negotiate the form and the policies of our common government, and those politics can shape those two things towards good, bad, or indifferent conclusions.

Part of our problem the last few years is the increasing willingness of some to be impractical, to do the wrong things, just to avoid some sort of politically incorrectness (which I use in the old Maoist sense of the term: positions taken that agree with a political ideology, even if they aren’t correct in the real sense.

Posted by: Stephen Daugherty at April 10, 2009 11:22 PM
Comment #280007


Obama’s DOJ has made the state secrets argument several times in the past. I initially wrote about it a while back and then left it because there was no real way to know, for sure, that he was not going to change his position on it and reverse it as you are suggesting he might.

But there is something that you are missing in all of this and what prompted this article. In addition to the state secrets argument he has made, there is the new and much more dangerous argument that goes way beyond what Bush had done in the past. If he was just preserving the state secret argument, which I still say doesn’t hold water and that Ambinder is wrong, then he did NOT have to add this new defense.

Let’s not lose the real point here, Stephen. Obama’s DOJ for the first time claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.

Don’t you get it? This is not just about defending the state secret defense, which you say is just until it can be reasoned out. It isn’t about even keeping the status quo of the Bush administration. This is an entirely new attempt to insulate the Executive Branch from any and all lawsuits for past and FUTURE violations.

As for your defense of Obama that ‘keeping his campaign promises is not necessary’ so that you can continue to defend him, well, I think that goes without saying. And it is what his critics have been saying for months, even before he was elected, that he would have to violate many of his promises. Yet, you write in another article that we should not think that he will violate those promises. An interesting change of position IMO.

Posted by: Rhinehold at April 11, 2009 9:34 AM
Comment #280008

gergle, yes it was you. I forgot to add the link to the comment.

I personally am not willing to sit by and watch my civil liberties be jacked with, just because a government can do something doesn’t mean it should or that we shouldn’t stand up to them and stop it.

Posted by: Rhinehold at April 11, 2009 9:38 AM
Comment #280009
If we are talking about domestic surveillance of Americans, the law has changed, and a judge now oversees, by law, any such surveillance with the issue of a warrant.

That is not what this article is about, David. It is about, specifically, the new defense that the Obama DOJ is arguing that US citizens cannot sue for redress for violating those laws in the past, and future. And peripherally about how this fits in with a pattern of behavior that the Obama administration has been following for the past few months.

Lee, Like Obama, I like to know what I am talking about before I say anything.

Except he didn’t, did he? When he made that statement, he was stating that he waited a couple of days after finding out about the bonuses before displaying his outrage because ‘he waned to know what he was talking about before saying anything’. But he didn’t even know at the time that his own Treasury Secretary was involved in the bonuses.

I think he should have waited a few more days to find out more.

As for my article being ‘one sided’, I presented the facts as they are, unfortunately the Obama administration is saying nothing on the topic and you know that. But don’t think I’ll be letting that go anytime in the future…

Posted by: Rhinehold at April 11, 2009 9:46 AM
Comment #280013

Rhinehold, I applaud your stand, but I think it’s a lost cause.

Just as we have the “privilege” of driving down public roads, we have the “privilege” of communicating over public means. Of course, there is a difference in the way these avenues were funded, but the idea of public areas is similar.

I don’t like that police use traffic laws to fish for other violations, but I don’t see society opposing that. While there is a tendency for phone snooping to feel a bit creepier, it is the same thing to me. Originally phone lines were all party lines. People regularly spied on their neighbors. It’s something one must be aware of in an era of smaller spaces, more people and rice paper walls.

Fortunately, it has thus far been illegal to use in a court room. That didn’t stop Nixon, Reagan, and I’ll speculate we may find that Bush used these means as a tool for political persecution.

Posted by: gergle at April 11, 2009 10:57 AM
Comment #280014


You have it exactly right: “Part of our problem the last few years is the increasing willingness of some to be impractical, to do the wrong things, just to avoid some sort of politically incorrectness (which I use in the old Maoist sense of the term: positions taken that agree with a political ideology, even if they aren’t correct in the real sense.”

I welcome the Bush haters back to the practical world and I won’t hold their earlie hysteria against them for long, but I think it would be unfair to take away the pleasure of ridculing their quick change.

BTW - I also hope we don’t just have a switch of positions. I hope conservatives don’t now oppose these policies because they are now called “Obama” instead of “Bush”.

Our nation has some really nasty enemies that are against what we Americans (liberals and conservatives) believe. They are hostis humani generis. We should respect their rights because we are better than they are, but let’s not let our generosity get out of hand.

Posted by: Christine at April 11, 2009 11:03 AM
Comment #280219

Don’t get to excited all you “Bush Lovers”
(I love it how when we raised legitimate concerns, complaints, issues re: Bush and Cheney excesses, illegalities, and abuse of power, it was all brushed off as “Bush Haters” — )
So now are we allowed to Brush of your BS arguements as just being from “Obama haters” and that they are not legitimate, and not worthy of any further rebuttal than — “you just hate Bush”??

No, what I have seen above is a legitimate effort to rebutt your arguements, but as usual (and what happened in the past)legitimate points, even repeatedly made, are ignored — interesting

So now, instead of being Bush Haters I guess our points are dismissed as merely being from “Obama Lovers” — Different Song, same dance??

Christine — I love it — let’s not let our Generosity get out of hand??
Oh — so how many years in Gitmo without any rights to dispute your detainment is determined to be “out of hand” more than 3, 4, 5???
Gitmo is another area that was not immediately jumped on — are you arguing there that Obama is “worse than Bush”?? Justifying or continuing Bush policies?
Get a grip—
Bush SHREDDED the Constitution — now it is going to take some time to put the pieces back together in a way that it can still be read! (and followed, for the first time in 8 years)

Posted by: Russ at April 15, 2009 12:07 PM
Comment #280220

if read closely the Obama DOJ is basing their arguement for this “radical new expansion of powers” that the PATRIOT ACT PROHIBITS THESE LAWSUITS
Hmmmm seems that it might easily be checked and if found to be true — from what I recall the Patriot Act was foisted on us by the Bush Administration, ramrodded thru Congress under Duress (shame on them) and when it was revised the Bush Administration continued with their Fear Campaign to try to prevent any meaningful revisions that would restore Civil Liberties.
If it is true (Patriot Act Forbids the Lawsuits) then it is interesting that the Obama DOJ is merely upholding the law, even when it is obviously not in line with their own philosophy (hmmm I seem to recall the Obama DOJ asking for the dismissal of a VERDICT against a REPUBLICAN Senator from Alaska — due to unethical conduct by the BUSH DOJ)
Imagine that???
And what problem with the Bush DOJ are we STILL grappling with, and for which there might be some Criminal Indictments coming down????
The Firing of US Attorneys for NOT persuing bogus indictments and prosecutions against DEMOCRATIC OPPONENTS!!!!!

Keep trying to tie Obama and his administration to the sleeze of the past 8 years and all you will accomplish by that is to remind people over and over just how corrupt the GOP had become and what a difference showed up on Jan 20, 2009.

Posted by: Russ at April 15, 2009 12:16 PM
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