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by Kenneth J. Theisen
Saturday, Feb. 28, 2009 at 3:11 PM
On February 25th, Obama’s Department of Justice (DOJ) again went to bat in court on behalf of the police state begun under the Bush regime by arguing in favor of the legality of the telecom immunity provisions of the Foreign Intelligence Surveillance Act (FISA) bill passed by Congress last summer. Under the amended FISA law, courts are required to dismiss a wiretapping suit against a telecommunications company if the Attorney General (AG) explains the firm's role in a confidential statement presented to the court. In the statement, the AG would affirm that the firm either had no role in the wiretapping or that it participated based on assurances that the executive branch had approved the eavesdropping to protect the nation from terrorism.
The latest legal position taken by DOJ should surprise no one since Obama, when he was still a senator, voted for the legislation strengthening the unconstitutional FISA. Obama’s DOJ has also gone to court previously this month defending other lawsuits allegedly that the federal government was entitled to keep its dirty “state secrets” in the interests of “national security.”
The telecom immunity provisions were included in the FISA bill last summer to cover-up the massive spying operations authorized by President Bush shortly after 9/11. (For more detail on these spying operations see http://www.eff.org/issues/nsa-spying) The warrantless surveillance program began when Bush issued an executive order authorizing the National Security Agency (NSA) to eavesdrop on international phone calls and email messages of Americans and others inside the U.S. without obtaining the court-approved warrants that are normally required under FISA for domestic spying. Telecommunication companies such as AT&T, Verizon, and others participated in the spy program by granting the NSA access to the private communications data of it customers. The existence of the program was eventually disclosed by the New York Times in late 2005. But the full details of the program have yet to be uncovered, and if the Obama DOJ argument prevails, those details may remain “state secrets.”
But even though every detail of the NSA surveillance program is not known, several have been exposed to the light of day. A whistleblower named Mark Klein came forward with evidence describing AT&T facilities, located in San Francisco, used in the spy program. He revealed how and where the handoff of customer communications from the telecom companies to the NSA is occurring, confirming that the government is intercepting and analyzing millions of ordinary Americans' communications, with the help of some of the country's largest telecom companies. (For more information on Klein’s revelations see http://www.eff.org/nsa/faq#51).
Last year’s FISA legislation granting telecom immunity had two purposes. One was to protect the telecom companies from massive monetary damages for civil rights violations. But the other purpose was to protect the government from political damage once the full details of the spy program were revealed in the various lawsuits. The federal government has consistently claimed that it has only spied on suspected “terrorists,” but the program really involved spying on millions of people, including massive datamining of emails, phone calls, etc. Obama consciously went along with this cover-up legislation when he voted for it.
In February on 2008 he missed a vote on that FISA bill as he was out campaigning. But on the same day of the vote, he issued a statement declaring "I am proud to stand with Senator Dodd, Senator Feingold and a grassroots movement of Americans who are refusing to let President Bush put protections for special interests ahead of our security and our liberty."
Then again in June of last year he said, there is "little doubt" that the Bush Administration, with the cooperation of major telecommunications companies, "has abused [its] authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.”
In February and June he allegedly opposed the telecom immunity provisions in the legislation. But when the legislation was voted on in the Senate on July 9, 2008, there was Senator Obama casting his vote in favor of the law that the Bush regime used to justify and legalize it massive spying program. Apparently abuse of authority and undermining the Constitution no longer bothered him, or he was willing to sacrifice principle in order to prove to the ruling class that he could be trusted to protect the “national security” if he was chosen to be commander-in-chief of the imperialist state.
But court proceedings have interfered with the government attempts to bury the dirty secrets of the NSA surveillance program. Chief U.S. District Judge Vaughn Walker is presiding over approximately 40 lawsuits brought against telecommunications companies before the passage of the FISA law granting immunity to the companies (For more background on the lawsuits and FISA, see Hepting v. AT&T, http://www.eff.org/nsa/hepting). Customers of AT&T are suing the corporation for allegedly illegally violating their civil rights by sharing their telephone and e-mail records with federal intelligence agencies, including the National Security Agency. The Judge had asked Obama's DOJ to brief the court on its position as to whether the FISA law gives the Attorney General too much discretion or power to decide whether a telecom company is immune from lawsuits. In a February 11, 2009 court order, Judge Walker asserted that FISA apparently provided no criteria for the Attorney General to utilize in making a decision as to whether to seek immunity for a company or not. Among other legal arguments, the plaintiffs argued that this was an unconstitutional delegation of power to the executive branch. Their position was that FISA improperly gave the AG unbridled power to decide which companies were granted immunity for actions that were previously illegal. They further argued that the law improperly requires dismissal of claims of illegal surveillance based not on a judicial finding about the facts of the spying or the legality or constitutionality of the surveillance, but rather on a certification from the AG that a member of the Executive Branch of government told the telecom company that the surveillance was “lawful.”
But in the February 25th DOJ filing the government lawyers wrote, “Under well-settled law, Congress may leave the decision of whether and when to make a certification to the attorney general's discretion." DOJ argued that Congress was directing the attorney general to shield companies from suits that endangered “national security” and that this was entirely legal, proper, and necessary.
But Cindy Cohn who is an attorney with the Electronic Frontier Foundation which represents AT&T customers in the lead case currently before the court stated, “It's unfortunate that the Obama administration has taken the position that it's OK for the president to decide whether millions of ordinary Americans get their day in court. That's exactly the kind of presidential power that candidate Obama was critical of the Bush administration for.” But then Obama was critical of the imperial power of the Bush regime only when he was seeking the presidency. After he obtained the job he immediately began to emulate his predecessor. In cases involving so-called “national security”, his Justice Department has consistently echoed the legal arguments of the Bush regime’s DOJ.
In fact the Bush administration had asked for dismissal of the suits against the telecom companies just as the present Obama administration is now doing. Bush’s Attorney General, Michael Mukasey, had previously asked Walker to dismiss the suits without revealing the extent of any company's cooperation.
When Obama ran for president millions of Americans put their hope for major changes into his candidacy. They hoped his becoming president would change the reactionary political trajectory of the Bush regime. Many of them ignored warning signs such as his vote for FISA or his statements about sending more troops to Afghanistan. Progressive supporters overlooked his statements about increasing the size of the military by 92,000 troops and his other statements about enlarging the “war on terror” by expanding it into Pakistan. Supporters heard him say he would close Gitmo, but then did not press him to state what he would do about all the other hellhole prisons run by the Pentagon around the world.
They argued that Obama needed to make certain compromises to get elected, but once he was in power that he would show his true nature and rollback the policies of the Bush administration. Now he is in power and he continues to take steps that continue many of the Bush policies, particularly around so-called “national security” issues. Many of his supporters still argue we need to give him a chance to do what is right and that we should wait and see what he will do over the next four or eight years. But how long do we wait? Have we not seen enough? How many people must be hurt or even killed by steps taken under the Obama administration before we demand real change, not just political rhetoric? When do we stop putting hope in a political savior from the Democratic Party and take independent political action?
I would argue we have waited too long already. Waiting further will only weaken our ability to build the true mass movement it will take to reverse the political trajectory of the last eight years. Waiting will only strengthen the imperialist rulers of this country. I further assert that Obama is now the commander-in-chief and political representative of this ruling class of imperialists, and that putting our hopes in him will only lead to disaster. The time for waiting is over! The time for political organizing and mass political action is now! The world can not wait!
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