Obama
says he wants "greater assurance that the court is looking at this from
both sides of the issue." From however many sides they may look at the
issue, the FISC judges are all appointed by Chief Justice Roberts, who himself
since 2006 has been actively involved in a highly politicized process of
overturning democratic rights by usurpation of legislative powers. Adding some
notional adversary process to a secret tribunal whose job has been to collude
with the executive branch in exercising essentially legislative, not
judicial, powers to authorize mass surveillance cannot redefine such a body
with an assigned political agenda. Another participant in the process cannot
convert this violation of the separation of powers into a proper judicial
process. FISC involvement with anything other than individual cases, with
probable cause determinations when they involve Americans, violates Article III
of the Constitution.
Obama's
"both sides" window treatment does not save this judicial usurpation
of legislative authority to empower the executive from what James Madison, in Federalist #47 ,
"pronounced the very definition of tyranny," for effectively
accumulating these separated powers "in the same hands." A statement
by FISC Chief Judge Reggie Walton described FISC's practical limitations in
performing oversight of this inherently legislative process, which statement,
the Washington
Post points out, "contrasts with repeated assurances from the Obama
administration and intelligence agency leaders that the court provides
central checks and balances on the government's broad spying efforts."
What the Chief Judge's statement reveals is that FISC is a court exercising
legislative powers that it is not institutionally competent to exercise.
Again,
adding another fox to this coop, even if tasked oxymoronically as a secret
civil liberties advocate, serves solely the purpose of Obama's propaganda goal,
"to improve the public's confidence," not to improve his own
compliance with the Constitution, nor the FISC's, which Obama thinks has done
rather "a fine job."
3.
The Putrid Act. In another of his four proposals, Obama said he
"will work with Congress to pursue appropriate reforms to Section 215 of
the Patriot Act, the program that collects telephone records." Omitting
mention of Section 702
of the Patriot Act, which contains the loophole interpreted to allow
for the warrantless searches of American phone calls and emails, Obama uses
another deceptive
tactic for making no change, while appearing to do so.
Since
a large bi-partisan
minority of back-benchers in Congress already worked on their own
reform that nearly cut back Obama's surveillance program to constitutional
proportions, it is no surprise that Obama intends to "work with
Congress." No doubt he will "work" members again to derail the
further multiple
efforts already pending to support the Constitution including, for
example, Republican presidential aspirant Senator Paul's bill requiring
that the "Fourth Amendment to the Constitution shall not be construed to
allow any agency of the United States Government to search the phone records of
Americans without a warrant based on probable cause." Obama will
undoubtedly attempt to substitute some innocuous cosmetic change like, why not--
yet another Board or similar bogus "oversight" that he can spin as
reform?
Obama
and his bipartisan leadership team "worked" Congress vigorously to
narrowly defeat the Amash reform Amendment
. As Rep.
Amash tweeted , "Pres Obama opposes my #NSA amendment, but
American people overwhelmingly support it. Will your Rep stand with the WH or
the Constitution?"
Obama
has no intention of actually confining what he calls his "programmatic
surveillance" within the framework of judicial warrants for searches
connected to individual cases that the Constitution requires. As former NSA and
CIA director Michael
Hayden observed , the president "didn't suggest he was going to
operationally change this program," which Obama thinks is "lawful,
effective, and appropriate" as it is. Obama's "reform" proposals
are more along the line of enlarging the number of foxes assigned to guard the
chicken coop, as discussed further below.
Again,
any Patriot Act proposals will, as Obama repeated, be designed "to give
the American people additional confidence" without making any operational
change, but only such cosmetic flim-flam as may be necessary to defuse the
nearly successful defense of the Constitution led by Reps. Amash and Conyers,
and supported by other politicians running for cover from an outraged public.
4.
NSA . Obama proposes a new propaganda organ at NSA--a website that
"will give Americans and the world the ability to learn more about what
our intelligence community does and what it doesn't do, how it carries out its
mission, and why it does so." He also proposes an NSA "full time
civil liberties and privacy officer." If this sounds like something new,
it is not. CIA has a website.
Before
the Bush/Obama militarization of domestic law enforcement, such inward-looking
measures were unnecessary for the military's "sigint" spy agency
because the military, under the 1878 Posse Comitatus Act, was excluded from
domestic law enforcement. The NSA's job to spy on foreigners, not propagandize
them as is the CIA's division of the spy labor, required no such measures for
managing public opinion. Now that the NSA is involved in domestic law enforcement
it needs PR operatives, including a website like the CIA has.
The
FBI already has a privacy officer and the Department of Homeland Security has
an Officer for Civil Rights and Civil Liberties. Both sit on the government's
Board on Safeguarding Americans' Civil Liberties. By law, the Director of
National Intelligence (Clapper), and the Director of the Central Intelligence
Agency (Brennan) are both required to have such an officer, and the independent
PCLO Board can direct other agencies to create such officers. These officers
have accomplished nothing more toward assuring compliance with the Constitution
than a pack of foxes would accomplish guarding a chicken coop. A new
counterpart at NSA cannot be realistically expected to accomplish any more.
Such
"reform" to add a military spy fox to the existing pack simply serves
to institutionalize the military's new role in domestic law enforcement while
expanding the coordination mechanisms designed to help cover-up and
rationalize, not prevent, constitutional and other violations. As in so many
areas of current concern, what is needed is the restoration of fundamental
landmark laws that have been repealed or overturned by the Supreme Court in the
recent past. In this case that would be a reinvigorated Posse Comitatus Act to
keep the military's focus trained on defending the country, not
policing it .
[To be continued.]
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