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OpEdNews Op Eds    H3'ed 8/22/13

Obama vs. Snowden: "Parsing the Presser" Series, Part 2

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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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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
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