Tuesday, April 14, 2009

A Machiavellian Slip

"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties. But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a "secret" that cannot be reviewed by the courts, it feels like deja vu all over again."

- Kevin Bankston, Electronic Frontier Foundation

While the nation has been transfixed by high seas rescues and swashbuckling Navy SEALS, a far more ominous story has been flying under the nation's radar. Earlier this month, in it's first opportunity to make good on campaign promises of - as quoted above - "transparency, accountability, and respect for civil liberties" - the Obama administration filed a motion to dismiss a landmark lawsuit against the National Security Agency and several individuals within the administration (including Obama himself). The lawsuit in question is being brought by five U.S. citizens who claim their civil liberties were violated when the United States government, in partnership with telecommunications corporations (most notably AT&T), engaged in domestic, warrantless wiretapping.

Last July, amid the normal partisan campaign attacks and counter punches, came news that then Senator Obama was reversing his decision to hold these telecommunications companies partially accountable for their role in the warrantless searches. In an effort to subdue backlash from Obama supporters critical of this move, Congressional Democrats were quick to point out that only private companies were being granted this retroactive immunity, and that taking legal action against the government, and it's officials, were any wrong-doing to be uncovered, would be perfectly legal. As West Virginia senator Jay Rockefeller wrote in a Washington Post Op-ed:

"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."

In October, a suit was brought against the Bush administration for it's role in the scandal. Shortly thereafter, the suit was pushed to this month. The Bush administration was happy to see it go, and the plaintiffs were pleased by the prospect of bringing this case before the Obama administration. It turns out that the plaintiff's optimism was sorely misplaced. On April 3rd, attorneys for the government defendants filed a motion to dismiss this case due to, among other things, the tried and true Bush-isms of "state secrets" and "sovereign immunity." As if this were not disappointing enough, the filing goes further to undo any promise of government accountability - past and future - by citing provisions of 2001's USA Patriot Act. The provision cited expressly forbids citizens from bringing "suits against the United States for damages and equitable relief based on alleged violations of the Wiretap Act and ECPA, in both cases by permitting relief against only a 'person or entity other than the United States.' Congress enacted these express reservations of sovereign immunity in Section 223 of the Patriot Act of 2001." What this means for Americans is best summed up by Glenn Greenwald in his report for Salon.com:

"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 is a devastating blow to our civil liberties. In essence, this filing asserts that President Obama and his administration are not only free to continue to violate our basic rights and freedoms, but also hold themselves above any sort of accountability for these acts. This is a stance that hearkens back to the darkest times in our nation's history; not only the disastrous presidency of George W. Bush, but to other infamous executives, as well.

"If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law...what I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, 'Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation.'"

-Richard M. Nixon

The problem with the collective rationales of Nixon, Bush, and now Obama, is that when these measures are implemented, they essentially dissolve the core of the nation they are designed to protect. Sadly, it seems that this newest administration will once again manipulate our system of government to expand it's power, instead of recognizing the core values of our society, wherein the Constitution is not designed to grant unto the government absolute power, it is in place to protect the inherent freedoms of the people, and to shield the people from the government itself if the government should so threaten them.

"Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety."

-Benjamin Franklin

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