National security and civil liberties

by Jeremy Leaming

Apologists of the federal government’s massive surveillance programs are pushing us to read David Simon’s lengthy explanation of why the programs are not bad. Simon, creator of “The Wire,” is dumbstruck -- how can Americans be so shocked. Instead those who can’t see things like Simon are dolts.

“You would think,” Simon writes, “that the government was listening in to secrets of 200 million Americans from reaction and hyperbole tossed around.” There aren’t enough American spies to do such a thing, and why in the hell would they want to, he maintains. And then he reminds us that Americans supported the Patriot Act, don’t we remember? And besides, the Foreign Intelligence Surveillance Act which created the FISA Court provides judicial review. The president said the same thing last week. Don’t worry, a highly secretive court is ensuring that those thousands of requests from the nation’s surveillance apparatus are being checked by the FISA Court. 

But Simons’ long-winded, sanctimonious blather, while providing comfort to supporters of the massive intelligence community, shuns or shows great ignorance of the Constitution. Really, why have a Fourth Amendment at all, or the other amendments, such as the First, that are intended to limit the government and provide us reasonable expectations of privacy. Toss those amendments aside already.

The ACLU and other supporters of liberty are not likely to be swayed by a television creator’s wobbly arguments supporting an increasingly unweildy intelligence apparatus.

Today, the ACLU and Yale Law School’s Media Freedom and Information Access Clinic lodged a motion with the FISA Court calling on it to release “its opinions on the meaning, scope, and constitutionality” of a section of the Patriot Act that provides the federal government ability to easily obtain and stockpile information on Americans’ activities.

ACLU Deputy Legal Director Jameel Jaffer said, “In a democracy, there should be no room for secret law. The public has a right to know what limits apply to the government’s surveillance authority, and what safeguards are in place to protect individual privacy.”  

Daniel Ellsberg, who leaked a lot of top secret government material on the Vietnam War, also weighed in with a piece for The Guardian, calling Edward Snowden’s release of classified nformation about the surveillance programs likely the most important in history.

Simon, in his post, writes about probable cause, saying it’s needed before the FISA Court will give the intelligence apparatus what it wants. He’s wrong. The FISA Court is essentially a rubber stamp. As Ellsberg says, “The government claims it has a court warrant under FISA – but that unconstitutionally sweeping warrant is from a secret court, shielded from effective oversight, almost totally deferential to executive requests. As Russell Tice, a former National Security Agency analyst put it: ‘It is a kangaroo court with a rubber stamp.’”

And then there’s Glenn Greenwald, the columnist, attorney, who along with Ewen MacAskill and Spencer Ackerman broke the first story about the NSA and FBI sweeping up and collecting telephone information. He’s rather tenacious, and is promising more information about the machinations of American spies.

by Jeremy Leaming

President Obama’s address to the National Defense University was quickly embraced by many high-profile pundits as evidence the 44th president would actually and finally offer change one could believe in. Specifically, change from the way his predecessor presided over a never-ending war on terror.

As noted here, during his May 23 speech the president provided some lofty rhetoric suggesting significant change was underway to counter intensifying criticism from civil libertarians and human rights advocates that the Obama administration is trampling fundamental constitutional principles and values while waging the so-called war on terror.

The New York Times editorial board lauded Obama’s speech as “the most important statement on counterterrorism policy since the 2001 attacks, a momentous turning point in post 9/11 America. For the first time a president stated clearly and equivocally the state of perpetual warfare that began nearly 12 years ago is unsustainable for a democracy and must come to an end in the not-too-distant future.”

Many other pundits also heralded the speech as a major shift in policy, while others, such as Alex Pareene warned that those concerned about human rights and civil liberties would likely be seriously disappointed.

Today, The Times reported that Pakistani officials said a CIA drone strike had supposedly “killed a top member of the Pakistani Taliban, an attack that illustrated the continued murkiness of the rules that govern the United States’ targeted killing operations.” Before his much-trumpeted counterterrorism speech, The Times reported that the administration would start shifting control of the drone strikes from the CIA to the military.

Obama’s speech received a lukewarm response from the ACLU, which has fought to obtain more information about the administration’s drone warfare. This blog also noted that a mere speech without action would not squelch criticism of counterterrorism efforts that violate U.S. and international law. The president declared early in his first term that we must protect fundamental values, such as due process under the law, as vigilantly as we wage war against terrorists. But such talk has too often proven hollow.

In a piece for The Guardian, Glenn Greenwald scored the president for a trend of advancing rhetoric that doesn’t reflect reality. Greenwald wrote, “what should be beyond dispute at this point is that Obama’s speeches have very little to do with Obama’s actions, except to the extent that they often signal what he intends not to do. How many times does Obama have to deliver a speech embracing a set of values and policies, only to watch as he then proceeds to do the opposite, before one ceases to view his public proclamations as predictive of his future choices?”