Obama's Continuing Constitutional Threat
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http://scienceblogs.com/dispatches/2011 ... tution.phpPosted on: May 24, 2011 12:30 PM, by Ed Brayton
Every day it seems the Obama administration is more and more clearly identifiable as a third Bush term when it comes to the most important constitutional issues of the day (and if you don't believe me, just ask the 2007/2008 version of Obama; he'll tell you). Now the DOJ is refusing to release a legal memo that attempts to justify the FBI's obtaining of telephone records without a warrant.
The Justice Department should publicly release its legal opinion that allows the FBI to obtain telephone records of international calls made from the U.S. without any formal legal process, a watchdog group asserts.
The nonprofit Electronic Frontier Foundation alleges in a lawsuit filed Thursday that the Justice Department's Office of Legal Counsel violated federal open-records laws by refusing to release the memo.
More details:
The decision not to release the memo is noteworthy because the Obama administration -- in particular the Office of Legal Counsel -- has sought to portray itself as more open than the Bush administration was. By turning down the foundation's request for a copy, the department is ensuring that its legal arguments in support of the FBI's controversial and discredited efforts to obtain telephone records will be kept secret.
"The public has a right to know the government's reasons for engaging in a questionable, invasive practice," said David Sobel, senior counsel for the foundation.
The Justice Department has said it can't release the document for national security reasons, but it hasn't elaborated on that assertion. At the same time, the department and the FBI have refused to comment on the legal position itself.
What little is known about the stance has prompted experts to worry that it could lead to a repeat of FBI abuses that were supposed to have been stopped in 2006.
For years after the Sept. 11 attacks, the FBI sought and obtained thousands of telephone records for international calls in an attempt to thwart potential terrorists.
The bureau devised an informal system of requesting the records from three telecommunications firms to create what one agent called a "phone database on steroids" that included names, addresses, length of service and billing information.
The department's inspector general later concluded that the FBI and employees of the telecom companies treated Americans' telephone records in such an informal and cavalier way that in some cases the bureau abused its authority.
Glenn Greenwald responds to this:
What's extraordinary about the Obama DOJ's refusal to release this document is that it does not reveal the eavesdropping activities of the Government but only its legal rationale for why it is ostensibly permitted to engage in those activities. The Bush DOJ's refusal to release its legal memos authorizing its surveillance and torture policies was unquestionably one of the acts that provoked the greatest outrage among Democratic lawyers and transparency advocates (see, for instance, Dawn Johnsen's scathing condemnation of the Bush administration for its refusal to release OLC legal reasoning: "reliance on 'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the Justice Department Office of Legal Counsel (OLC) upsets the system of checks and balances between the executive and legislative branches of government."
The way a republic is supposed to function is that there is transparency for those who wield public power and privacy for private citizens. The National Security State has reversed that dynamic completely, so that the Government (comprised of the consortium of public agencies and their private-sector "partners") knows virtually everything about what citizens do, but citizens know virtually nothing about what they do (which is why WikiLeaks specifically and whistleblowers generally, as one of the very few remaining instruments for subverting that wall of secrecy, are so threatening to them). Fortified by always-growing secrecy weapons, everything they do is secret -- including even the "laws" they secretly invent to authorize their actions -- while everything you do is open to inspection, surveillance and monitoring.
This dynamic threatens to entrench irreversible, absolute power for reasons that aren't difficult to understand. Knowledge is power, as the cliché teaches. When powerful factions can gather unlimited information about citizens, they can threaten, punish, and ultimately deter any meaningful form of dissent: J. Edgar Hoover infamously sought to drive Martin Luther King, Jr. to suicide by threatening to reveal King's alleged adultery discovered by illicit surveillance; as I described earlier today in my post on New York's new Attorney General, Eliot Spitzer was destroyed in the middle of challenging Wall Street as the result of a massive federal surveillance scheme that uncovered his prostitution activities. It is the rare person indeed with nothing to hide, and allowing the National Security State faction unfettered, unregulated intrusive power into the private affairs of citizens -- as we have been inexorably doing -- is to vest them with truly awesome, unlimited power.
