While I congratulate President Obama on his achievement in winning the Nobel Peace Prize, that achievement should serve as a reminder to uphold the principles of separation of powers and liberty that this country was founded upon. In a financial crisis where "wasting money" ought to be the accusation scaring politicians most, it is "weak on national security" that has become the "soft on crime" of the 111th Congress and the Obama Administration. Again and again, the Obama administration and all but a few congressional Democrats have compromised on civil liberties in order to "protect" national security, the latest "compromise" coming during yesterday's Senate Judiciary Committee markup of legislation reauthorizing Patriot Act authorities. When will we stop buying into the Bush paradigm that the government must trade constitutional rights for national security? Since when does protecting the Constitution hurt national security?
Since taking office, the President has strayed from his promises and key founding principles by failing to curtail the practice of indefinite detention, not lending his support to legislation to reform the state secrets privilege, refusing to release key interrogation photos, and, in the administration’s latest move to stay the course on Bush national security policies, actively lobbying for reauthorization of three expiring Patriot Act provisions, and sandbagging attempts to add in crucial civil liberties protections and checks on executive power.
The Obama Administration isn’t alone in its efforts to preserve Bush-era national security policies. On Thursday, the Senate Judiciary Committee played its part, and was busy working for this country handing out surveillance powers like Oreo cookies at kindergarten snack time. As I blogged early this week, the Senate Judiciary Committee marked up legislation that ended up as a glowing acclamation and reauthorization of the three expiring Patriot Act-era authorities (Section 215 orders, "John Doe" roving wiretaps and the never used "lone wolf" provisions) with a few privacy and civil liberties fixes, many of which are merely cosmetic.
Democratic congressional members that were elected, in part, to roll back Bush-era surveillance policies were poised to do just that when Senators Feingold and Durbin introduced the JUSTICE Act, which provided for strong fixes to surveillance powers aimed at protecting American’s privacy. Checks on the executive powers still seemed possible when Senators Leahy and Kaufman introduced a bill with fewer, but still important, privacy and civil liberties protections. Then Chairman Leahy made a deal with Chairwoman Feinstein (of the Senate Select Committee on Intelligence), and at last week’s markup, even some of the meager remaining civil liberties protections were stripped out of the bill.
However, the real shock came yesterday, when after a classified briefing from key Obama administration officials, including Michael Leiter, Director of the National Counterterrorism Center, the Senate Judiciary Democrats struck a deal to adopt a package of amendments that further stripped the bill of its civil liberties protections. It is unclear--since it was as secret meeting--how hard the Obama administration lobbied to remove the civil liberties protections, but with the help of unlikely Democratic bedfellows, like Senate Judiciary Ranking Member Jeff Sessions, the Obama administration agreed to, and in some cases proposed the amendments, such as the amendment to limit a higher standard for obtaining library records under Section 215 to "circulation records and patron lists," leaving open a lower standard for internet search records. Senator Leahy has pitched this whole deal as a "compromise," but it doesn’t look as though the Executive branch has had to give anything up.
The bill voted out of the Senate Judiciary Committee yesterday (11 yeas, 8 nays) is not a total loss. Thanks in large part to the laudable work of Senators Feingold and Durbin and support from Senator Specter, the bill contains important reporting requirements, new sunsets for key authorities, like the NSL power, and minimization procedures. But, with a President who once said:
So as Americans, we reject the false choice between our security and our ideals.
and a Judiciary Chairman who so adamantly sought answers from Bush-era officials, it is a tremendous disappointment to watch secret meetings and backroom deals result in a loss of good checks on executive power. Perhaps Senator Feingold said it best when he pointed out that it is NOT the job of the Senate Judiciary Committee to hand over power whenever the FBI or a prosecutor wants it. In fact, the Senator has a diary on this very subject on the Rec. List.
If our Senate keeps giving the FBI all the power it wants after secret meetings, and our President continues to grasp unconstitutional Bush-era principles and powers, it seems there will be no going back from the mistakes we made after 9/11. The Administration’s message is, "We must move forward." Well, moving forward must mean moving away from Bush-era practices that fly in the face our founding principles. Moving forward should mean ditching the over-collection of information on innocent Americans, ineffective broad law enforcement authorities, secret briefings and secret deals awarding surveillance powers, the policy of holding people without charge or trial, and the government’s asserting "state secrets" to avoid liability for wrongdoing. The apologists might tell me "baby steps." But, after Thursday’s mark-up, it is clear we are not changing into a secure nation that values civil liberties. We are stepping in the wrong direction--towards a surveillance state susceptible to fear-mongering, and we will end up a less free, less safe, less hopeful nation.
For wonks out there, here are the full results of the markup.