Changing Spying

by Austin Raynor

President Obama rode into office on the promise of change. One of the central tenets of his stated goal to alter the way government works was his commitment to increasing transparency in government: namely, ending Bush-era policies of executive privilege and secrecy. But less than a year into his first term, Obama has reversed course, and now champions the very policies that he criticized so harshly as a senator.

The most prominent of these policies, supported by Bush, attacked by Obama, and now backed by Obama, is the domestic spying program. The Electronic Frontier Foundation is the lead counsel for one current challenge, Shubert v. Bush, to the National Security Agency (NSA) program. The plaintiffs contend that the “NSA intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government” and that “the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant.”

Such behavior, allege the plaintiffs, violates not only the Fourth Amendment but also the Foreign Intelligence Surveillance Act (FISA). Shockingly, the Obama Department of Justice, by filing a motion to dismiss the case, is attempting to prohibit the case from even being considered. The Justice Department argues that such a hearing “would require the disclosure of highly classified NSA sources and methods about the Terrorist Surveillance Program and other NSA activities;” the threat to national security, the Justice Department argues, would exist regardless of any safeguards or exclusion of particular documents.

The Obama administration in this case is invoking the “state secrets” privilege. Traditionally this privilege is employed to prevent particular documents and pieces of information—those highly sensitive from a national security standpoint—from being considered. But Bush’s employment of the privilege, now continued by Obama, was to have entire cases thrown out before they were even considered on the basis of state secrets.

The government’s behavior in this case must be condemned on two accounts. Foremost—and this is what the plaintiffs in Shubert v. Bush seek to address—is the unconstitutionality of the massive spying program. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." FISA accounted for national security issues by instituting secret courts to grant warrants. The NSA program fails even to take advantage of this option.

But apart from the issue of spying itself is Obama’s Nixonian belief that he is above the law. As the ACLU noted, “This case is not about secrecy. It’s about immunity from accountability.” The rule of law has truly been abandoned when citizens are prevented from even challenging the behavior of the government in court. If the government cannot be brought to court, what safeguards remain to ensure the constitutionality of its behavior?

The hypocrisy of Obama’s administration is on grand display here. Hidden behind the glamour of masterful rhetoric is a man who frequently says one thing and then does the exact opposite. For instance, during his campaign Obama released his “Plan to Change America,” in which he stated that one of the problems with government is that “the Bush Administration…has invoked a legal tool known as the ‘state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.” And yet here he is employing the exact same tool—state secrets—as the one he denounces.

Or, more strikingly, consider the statements of Eric Holder, now Attorney General, during Bush’s term: “I never thought that I would see the day when a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens.” Apparently such behavior is only reprehensible when the President engaging in it is a Republican.

But Shubert v. Bush isn’t the only case where Obama has asserted the broad interpretation of the state secrets privilege. In Mohamed et al v. Jeppesen Dataplan, Inc., the Obama administration also invoked this privilege, barring from seeking redress five men who had been allegedly detained and tortured in CIA camps. As this case starkly illustrates, the abuse of the state secrets privilege can be used to protect illegitimate government behavior in any number of categories.

Where is the outcry over Obama’s continuation of contemptible Bush-era policies? Bush was attacked daily for his contempt for law, his unconstitutional spying programs, and his broad endorsement of torture and illegal detention. The only difference now is that Barack Obama is president and not George Bush. It is time for the mainstream media and the American public to wake up to the fact that Obama has embraced the reproachable policies of his predecessor. Senate Democrats, including Russ Feingold, have already begun to speak out against Obama’s expansion of executive power. It’s time for everyone else to do the same.