Obama and the Surveillance Society

Over at the Electronic Frontier Foundation's blog, Deeplinks, Kevin Bankston writes about what Obama could do to stop telco amnesty, framing his post in response to this NYT story by Eric Lichtblau and James Risen, the reporting duo who broke the illegal spying story back in December 2005. They write:

WASHINGTON — President-elect Barack Obama will face a series of early decisions on domestic spying that will test his administration’s views on presidential power and civil liberties.

The Justice Department will be asked to respond to motions in legal challenges to the National Security Agency’s wiretapping program, and must decide whether to continue the tactics used by the Bush administration — which has used broad claims of national security and "state secrets" to try to derail the challenges — or instead agree to disclose publicly more information about how the program was run....

In perhaps the most critical test, civil liberties groups that are suing major phone companies that took part in the N.S.A. program are waiting to find out whether a federal judge will throw out the lawsuits based on immunity granted by Congress in June.

The Justice Department has already moved to take advantage of the immunity provision by certifying in court that the phone companies were complying with a presidential order. But the Electronic Frontier Foundation, a civil liberties group that has taken the lead in the lawsuit, maintains that Congress acted beyond its powers.

A hearing is set for Dec. 2. Cindy Cohn, legal director for the foundation, said that as the case moved forward the new administration could act to withdraw the immunity certification made by the Bush Justice Department.

"Nothing will be over by Jan. 20," when Mr. Obama is inaugurated, Ms. Cohn said.

In light of this, Bankston argues that there are a series of actions Obama could take as president.

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."

While I'm supportive of all of these ideas, I think that that horse left the barn, at least politically--particularly in light of Obama's reversal on telco amnesty last summer. There's the possibility that the courts find the amnesty part of the legislation unconstitutional, since it amounts to the Congress telling the courts how to rule, but outside of that possibility, it doesn't seem likely the telcos are going to be held accountable. It would be a great victory for justice if a President Obama were to take any of these actions. But the key issue in telco amnesty was the shutting of the door on the public's right to know what happened in this program--who was spied on and why and what elements of the program are ongoing.

We know part of this already, from the whistleblowers who spoke out last month that they were illegally spying on Americans abroad, but the program is still shielded, and innocent Americans undoubtedly are still being subject to warrantless wiretapping.

This is what President Obama could end, even without Congress acting. He could instruct his agencies to follow the old FISA rules and United States Signals Intelligence Directive 18, or USSID 18 -- an NSA rule that bars overseas surveillance of Americans without authorization and probable cause. Those protections, and the basic Constitutional fourth amendment protection, have been all but eradicated by the Bush administration and have to be restored if the Obama administration hopes bring this country back under the rule of law.

Whether this will happen is now seriously in question, with reports that former National Counterrorism Center head John Brennan is the favorite for the CIA director nomination. This pick could create real conflict within the new administration: Brennan continues to defend the "enhanced interrogation" techniques and rendition that Obama himself has renounced. On this, I can only reiterate what Glenn says:

To appoint someone as CIA Director or Director of National Intelligence who was one of George Tenet's closest aides when The Dark Side of the last eight years was conceived and implemented, and who, to this day, continues to defend and support policies such as "enhanced interrogation techniques" and rendition (to say nothing of telecom immunity and warrantless eavesdropping), is to cross multiple lines that no Obama supporter should sanction. Truly turning a page on the grotesque abuses of the last eight years requires both symbolism (closing Guantanamo) and substantive policy changes (compelling adherence to the Army Field Manual, ensuring due process rights for all detainees, ending rendition, restoring safeguards on surveillance powers). Appointing John Brennan to a position of high authority would be to affirm and embrace, not repudiate, the darkest aspects of the last eight years.