Dispatches from the Creation Wars

Badass Quote of the Day

Julian Sanchez absolutely nails the pattern of the last nine months:

We know the rules by now, the strange conventions and stilted Kabuki scripts that govern our cartoon facsimile of a national security debate. The Obama administration makes vague, reassuring noises about constraining executive power and protecting civil liberties, but then merrily adopts whatever appalling policy George W. Bush put in place. Conservatives hit the panic button on the right-wing noise machine anyway, keeping the delicate ecosystem in balance by creating the false impression that something has changed. We’ve watched the formula play out with Guantánamo Bay, torture prosecutions and the invocation of “state secrets.” We appear to be on the verge of doing the same with national security surveillance.


A perfect description of reality. The only thing leaving even the faintest impression that Obama has changed anything significant about the Bush administration’s unconstitutional policies other than prohibiting torture is the fact that the right wing is still trying to sell the ridiculous notion that Obama is actively undermining our national security by actually following the rule of law.

Last week, the Senate Judiciary Committee seemed to abandon hope of bringing any real change to the Patriot Act. A lopsided and depressingly bipartisan majority approved legislation that would reauthorize a series of expanded surveillance powers set to expire at the end of the year. Several senators had proposed that reauthorization be wedded to safeguards designed to protect the privacy of innocent Americans from indiscriminate data dragnets–but behind-the-scenes maneuvering by the Obama administration ensured that even the most modest of these were stripped from the final bill now being sent to the full Senate.

In September the Senate got off to a promising start. Only three provisions are actually slated for “sunset” this year: “lone wolf” authority to wiretap terror suspects unconnected with any foreign terror group; “roving” wiretaps that can follow a suspect across an indefinite number of phone lines and Internet accounts; and “Section 215″ orders that can be used to compel third parties to turn over any “tangible thing” investigators believe may be relevant to a terrorism investigation. Yet several Democrats had signaled a desire to use the renewal process to undertake a much broader review of the post-9/11 surveillance architecture, including National Security Letters (NSLs)–a controversial tool that permits the mass acquisition of financial and telecommunications records without court order–and last year’s sweeping amendments to the Foreign Intelligence Surveillance Act (FISA), which permit the executive branch to authorize broad interception of Americans’ international communications with minimal court oversight. Democratic Senator Russ Feingold proposed an ambitious and comprehensive reform bill called the JUSTICE Act–which still would have reauthorized roving wiretaps and 215 orders–while Democratic Senator Patrick Leahy offered a more modest bill that nevertheless sought to narrow the nearly unlimited scope of NSLs and Section 215…

In public, the administration declared its openness to such “modifications.” As well one might expect, considering that President Obama himself had co- sponsored legislation in 2005 containing many of the very same safeguards now in Feingold’s bill. Even when, during the campaign, Obama had disappointed many of his supporters by voting for the very FISA Amendments Act he pledged to filibuster, he reassured them that as president he would revisit that “imperfect” bill. Civil libertarians understood that the more limited Leahy bill would provide the template for reform but had reason to hope some of the key provisions of Feingold’s JUSTICE Act might be incorporated during markup.

It was not to be. When the Senate Judiciary Committee convened at the beginning of the month to start work on legislation, it became clear that the Obama administration had been waging a campaign behind the scenes to oppose any significant modifications to NSL or 215 authority–in particular, any requirement that investigators have “specific and articulable facts” tying records sought to terror suspects or their associates. In a last-minute switcheroo, Democratic Senator Dianne Feinstein swooped in with a substitute bill that gutted the core reforms of Leahy’s modest bill. And it got worse. A week later, a series of further amendments offered by Republican Jeff Sessions watered down the final bill reported out of committee still further. Remarkably, the arch-conservative Sessions appears to have been taking dictation from the Obama administration, presumably to spare committee Democrats the indignity of further overt capitulation: the New York Times reported that his changes were “a verbatim transfer of the text of amendments the Obama administration had privately sent to Congress on Wednesday.” An attempt by Feingold to amend the FISA Amendments Act–perhaps the most egregious of the post-9/11 expansions of executive branch surveillance authority–was promptly torpedoed by Leahy on procedural grounds.

Just more game-playing by the Obama administration.