Mercury Rising 鳯女

Politics, life, and other things that matter

NSA: The Fourth Amendment grants No Such Authority

Posted by Charles II on April 16, 2009

DemocracyNow did an important interview of Thomas Tamm, a DOJ whistleblower today. Amy then added Glenn Greenwald (who had an article in Salon today about torture as well as an article on FISA). He had this, among much more to say on DN:

AMY GOODMAN: Glenn, can you talk about the significance of the Jewel v. NSA case?

GLENN GREENWALD: Yeah, that was—that is an amazing case, because what happened was, in 2008, when the Democrats voted for that FISA bill, part of what the FISA bill did was it immunized the telecoms from the lawsuits that were pending based on this illegal spying. And what the Democrats said at the time was, “Well, don’t worry about the fact that we’re immunizing the telecoms, because we’re not immunizing government officials, the Bush officials who ordered the illegal spying. You can still impose accountability on them.” And so, the organizations that have brought the lawsuits against the telecoms took the Democrats at their word, like EFF, Electronic Frontier Foundation, and they commenced lawsuits against the Bush officials who ordered the illegal spying. And that was a lawsuit commenced in October of 2008 called—that’s the Jewel case that you just referenced.

And in October 2008, the Bush administration said to the lawyers who brought the lawsuit, “Well, we don’t really have time to answer the lawsuit, because we’re going to be on our way out the door in January, so we’d like to extend the time to answer into April of 2009, so the new administration can be the ones who handle this lawsuit.” And, of course, the plaintiffs’ lawyers were ecstatic. They thought, well, of course we’d rather have Obama answer the lawsuit than Bush.

And yet, last Friday, the Obama administration, the Justice Department, filed the first response to this lawsuit, one claiming that the Bush administration illegally spied on Americans, and what Obama said was, number one, that the program that the lawsuit is alleging occurred. The activities that it’s alleging are too secret, and grave national security harm would result if the court looked at this program and ruled on whether it was illegal, and thus demanded its dismissal.

And then the Obama administration invented a brand new radical argument that not even the Bush administration had espoused that says that the government is completely immune from any lawsuits for illegal spying, unless they deliberately or willfully disclose to the public what it is that they learned. So they basically said government officials are immune, when they break the law, from lawsuits, except in the narrowest of cases. And so, the Obama administration sought to bar any lawsuits against Bush officials for illegal spying, after they spent the last eight months assuring the public that Bush officials would still be held accountable even though telecoms were immune.

I’m sorry to say, but this seems to be true. The Obama Administration will have to be forced to back away from asserting essentially dictatorial powers. How, given the self-congratulatory and defensive attitude of many Democrats, I don’t know. But no democracy can survive leaders who have the power to spy on anyone without consequences.

Bonus link: Naomi Klein on hopeovers, hopesickness, and other phenomena of the Obama era.

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