Not Hypocrisy

And don’t you dare ever say so!

Warrantless spying fight

Obama officials demand full, reform-free renewal of the once-controversial power to eavesdrop without warrants

By Glenn Greenwald, Salon

Thursday, May 24, 2012 09:37 AM EDT

In 2006, The New York Times’ James Risen and Eric Lichtblau won the Pulitzer Prize for their December, 2005 article revealing that the Bush administration was eavesdropping on the electronic communications of Americans without the warrants required by the FISA law (headline: “Officials Say U.S. Wiretaps Exceeded Law”). Even though multiple federal judges eventually ruled the program illegal, that scandal generated no accountability of any kind for two reasons:

(1) federal courts ultimately accepted the arguments of the Bush and Obama DOJs that the legality of Bush’s domestic spying program should not be judicially reviewed; and

(2) the Democratic-led Congress, in 2008, enacted the Bush-designed FISA Amendments Act, which not only retroactively immunized the nation’s telecom giants for their illegal participation in that spying program and thus terminated pending lawsuits, but worse, also legalized the vast bulk of the Bush spying program by vesting vast new powers in the U.S. Government to eavesdrop without warrants (in his memoir, President Bush gleefully recounted that the 2008 eavesdropping bill supported by the Democrats gave him more than he ever expected).

It was then-Sen. Obama’s vote in favor of the FISA Amendments Act that caused the first serious Election Year rift between him and his own supporters. Obama’s vote in favor of the bill was so controversial for two independent reasons:

(1) when he was seeking the Democratic nomination only a few months earlier and needed the support of the progressive base, Obama unequivocally vowed to filibuster “any bill that includes retroactive immunity for telecommunications companies,” only to turn around once he had secured the nomination and not only vote against a filibuster of that bill but then vote in favor of the bill itself; and

(2) the bill itself legalized vast new powers of warrantless eavesdropping: powers which the Democratic Party (and Obama) had spent years denouncing (as Yale Law Professor Jack Balkin put it at the time: “Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”).

When Obama announced his reversal, his defenders insisted he was only doing it so that he could win the election and then use his power as President to stop warrantless eavesdropping abuses, while Obama himself claimed he voted for the FISA bill “with the firm intention – once I’m sworn in as President – to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”

The only positive aspect of the FISA Amendments Act of 2008 was that Congress imposed a four-year sunset provision on the new warrantless eavesdropping powers it authorized. That sunset provision is set to expire and – surprise, surprise – the Obama administration, just like it did for the Patriot Act, is demanding its full-scale renewal without a single change or reform.

Of course he’ll be better and more courageous and “progressive” when he never has to face voters again.