More on Obama’s Surveillance State
By David J. Theroux • Wednesday April 8, 2009 12:57 AM PDT • 14 Comments
To follow up on my recent posting, “Obama’s Surveillance State Targets PCs, Laptops and Media Devices,” Computerworld reported on March 15th, in “Obama administration says treaty text is state secret”:
The Office of U.S. Trade Representative (USTR), part of President Barack Obama’s office, has denied a company’s request for information about a secretive anticounterfeiting trade agreement being negotiated, citing national security concerns. . . .
The USTR under Obama seems to be taking the same position about the Anti-Counterfeiting Trade Agreement (ACTA), which New Zealand and a number of other countries are negotiating, as it did under former President George Bush, that the treaty documents are not open to the public. One of Obama’s campaign promises was to make government more open and responsive to the public.
USTR continues to deny access to the key ACTA documents. As IT World reported on March 24th, transparency has yet to be seen and “national security” continues to be the rationale given, with the only change being promise of a “long-term review” of the matter.
USTR officials confirmed Tuesday that the agency, part of the White House office of President Barack Obama, will begin a long-term review of its transparency, including “how the agency acquires information from the public and transmits information to the public,” said USTR spokeswoman Debbie Mesloh.
The pledge to review transparency comes after three groups, Knowledge Ecology International (KEI), Public Knowledge and the Electronic Frontier Foundation (EFF), filed Freedom of Information Act requests seeking details about the Anti-Counterfeiting Trade Agreement (ACTA), a trade pact being negotiated among the U.S. and several other countries.
USTR has denied those information requests, telling KEI that the antipiracy pact is “properly classified in the interest of national security.”
Consumer groups and KEI have complained that ACTA is being negotiated in secret and could have a significant impact on how intellectual-property laws are enforced in the U.S.
Computerworld reports today that in a joint statement just released by ACTA that secrecy remains in full force:
“It is accepted practice during trade negotiations among sovereign states to not share negotiating texts with the public at large, particularly at earlier stages of the negotiation,” says the statement. “This allows delegations to exchange views in confidence facilitating the negotiation and compromise that are necessary in order to reach agreement on complex issues.”
Moreover, as Computerworld further notes in quoting the ACTA statement, the fears remain justified that the treaty will allow governments to have sweeping access to anyone’s PC, laptop and other electronic devices in order to make copies of any files:
[T]he statement mentions an effort to arrive at consistent provisions covering “the authority of the judicial authorities to order injunctions which require that a party desist from an infringement” and “provisional measures, such as the authority for judicial authorities or other competent authorities to order, in some circumstances, the seizure of goods, materials or documentary evidence without necessarily hearing both parties”.
But, what about Obama’s January 21st executive order on “transparency” in which he claimed?
All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.
For the Obama White House to be really transparent, could the terms “fog” or “smokescreen” or “deceit” better apply? This obfuscation by the Obama administration regarding privacy and civil liberties is fully consistent with their support for government secrecy and immunity via the “State Secrets Privilege” regarding the continuation of wiretapping, renditioning, and other provisions of the USA Patriot Act. According to Bob Egelko in the San Francisco Chronicle:
The Obama administration is again invoking government secrecy in defending the Bush administration’s wiretapping program, this time against a lawsuit by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.
And this from Glenn Greenwald at Salon.com on April 6th regarding the warrantless eavesdropping program involving telecoms and the federal government:
But late Friday afternoon, the Obama DOJ filed the government’s first response to EFF’s lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush’s NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the “state secrets” privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new “sovereign immunity” claim of breathtaking scope—never before advanced even by the Bush administration—that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is “willful disclosure” of the illegally intercepted communications.
In his article, Greenwald reproduces the actual DOJ brief insisting upon the Obama administration’s claims of absolute executive power and secrecy rights because doing otherwise “would cause exceptionally grave harm to national security.”
Tags: Civil Liberties, Constitution, Intellectual Property, Law, Personal Liberty, Presidential Power, Surveillance, Technology, The State, Trade 
Greenwald says: “a brand new ‘sovereign immunity’ claim of breathtaking scope-never before advanced even by the Bush administration”
Really? Looks to me that Glenn needs to bone up on a bit of ConLaw history, as an absolute sovereign immunity for the Federal Government was first advanced by John Marshall in 1821:
“The universally received opinion is that no suit can be commenced or prosecuted against the United States; that the Judiciary Act does not authorize such suits.” – Cohens v. Virginia, 19 U.S. 6 Wheat. 264 264 (1821), Chief Justice Marshall, Unanimous Decision
The almost absolute power of the Government to invoke state secrets, is a SCOTUS created doctrine first legitimised in United States v. Reynolds, 345 U.S. 1 (1953). Vinson in his 6-3 majority opinion, laid down and rolled-over like an obedient puppy dog.
Why is Greenwald not being honest here?
d post | Apr 13, 2009 | Reply
Mr. Theroux, I’d like to first state that my personal estimation of you was dramatically increased by your willingness to post my previous comment, including the personal derogation. Upon discovering that comments had to first be approved before being published, I did not expect to see it in that post. The Independent Institute’s primary appeal to me is Ivan Eland and Charles Peña, whom I’ve followed since their Cato days, and believe are two of the finest foreign policy wonks presently active. I’ll make an honest attempt to keep any further dialog in blog comments here, above the belt.
In Re: Computuerworld article dated March 15th. The article is referencing a March 10, 2009 USTR response to an FOIA request made by James Love, Director of Knowledge Ecology International. The response, singed by Career USTR Official, Carmen Suro-Bredie justified its denial on April 17, 1995; Executive Order 12958: Classified National Security Information, before Holder’s FOIA memorandum had been promulgated, and Ashcroft’s FOIA Memorandum of October 12, 2001, had been rescinded. The USTR was still an agency in transition, because Obama’s USTR appointee had yet to be approved. Technically, it was Obama’s USTR that issued it, but without noting this, the assertion is a exaggeration of reality.
In Re: IT World article. Why did you leave out the last paragraph in your citation? “‘KEI is very impressed with the USTR decision to undertake a review of USTR transparency efforts,’ Love wrote on the KEI blog. ‘They are taking this much further than simply reviewing policies on the Freedom of Information Act, or recent controversies over the secrecy surrounding the Anti-Counterfeiting Trade Agreement negotiations. The review offers the possibility of more transformative changes, including pro-active measures to enhance transparency, covering all aspects of USTR operations.’” This would have greatly tempered your claims.
In Re: ComputerWorld Article dated april 8. This article was referencing a statement made by New Zealand Government officials; it can hardly be used to construe intent on the Obama Administration Additionally The article said the NZ government said “‘a comprehensive set of proposals for the text of the agreement does not yet exist’, so requests for the text of the agreement to be released are premature, it says.”
KEI’s March 20, 2009 blog post about the meeting with USTR officials (cited above) stated, “The review is expected to be completed within a few months”. You cannot assert an “Obama Surveillance State” without an unprovable charge that the Obama Administration working in bad faith. ACTA is a significant concern. It has the ability to abrogate Natural Human Rights. It could also serve to cancel Constitutional enumerated rites with a back door assault via US Constitution; Article VI; clause 2; that sets a treaty made under the authority of the United States as The Supreme Law of The Land. It is right to be very concerned about this, but you should not cheapen the validity of your argument with exaggerated lamentations of Obomination. There is already far too little signal to noise within the political bipolarity. Why would you, as a self-proclaimed libertarian, aid in decreasing the signal? Didn’t the last 8 years offer enough proof that the right-side cares naught about the people’s liberty?
d post | Apr 13, 2009 | Reply
Greenwald is being honest. He only claims that on this issue, Obama is pushing the executive privilege argument further than Bush did. This is true.
As for whether Obama is acting in bad faith, recall that he voted for cloture on the 2008 FISA bill that granted telecom immunity after he promised he would vote to filibuster it. He has also been disingenuous on other civil liberties issues, like indefinite detention and medical marijuana. He is a politician, and the most dishonest tend to rise to the top.
Anthony Gregory | Apr 13, 2009 | Reply
d post, also, see Greenwald here:
“Even for the hardest-core Obama loyalists, it’s rather difficult to attribute these increasingly harsh condemnations of Obama’s civil liberties, secrecy and executive power abuses to bad motives or ignorance when they’re coming from the likes of Russ Feingold, TalkingPointsMemo, the Center for American Progress, Nancy Pelosi, EFF, the ACLU, The New York Times Editorial Board, Keith Olbermann, Jonathan Turley, The American Prospect, Bruce Fein, Digby, along with some of the most enthusiastic Obama supporters and a bevvy of liberal law professors and international law experts — those who were most venerated by progressives during the Bush era on questions of the Constitution and executive power.”
http://www.salon.com/opinion/greenwald/2009/04/13/obama/index.html
Anthony Gregory | Apr 13, 2009 | Reply
I tried to place all of this into one comment, thoroughly linked with URLs, but was denied by the wordpress codebase, either because of the number of links in the comment or its length (about 1800 words).
I believe it it relevant to consider the presiding judges who have received the Obana DOJ’s opinions that rankle so many, because they seem to be Jurists with staunchly conservative pedigrees, who have shown the temerity in the past to challenge The Bush Administration’s overreaching claims of Executive Powers. They seem like an odd place for the Obama Administration to be extending those claims.
Judge John D. Bates, who recently handed down his memorandum, denying the government’s arguments, and finding that for at least three of the four plaintiffs seeking habeas corpus relief from their continued detention at Bagram, their cases could advance, and in the fourth case, Haji Wazir v Robert Gates – Civil Action No. 06-1697, leaving open that possibility with future pleadings requested.
Chief Judge Vaughn R. Walker, who got the recent Government plea for Summary Judgment in their favor in Jewel v NSA, was one of the only Federal Judges who has previously stood up and dissented against the state secrets invocation by the government in Al-Haramain v. Bush.
There are sound reasons why an incoming President should not be in the business of asserting the past Presidential Administration’s criminal acts. This is clearly the duty of Congress. If a new President from a different party were to do this, it would assure that every time a future president from a different party entered the White House, that partisan dog and pony shows would be one step behind. Incoming DOJ appointees of a new administration should not be varying wildly from previously asserted claims in ongoing Federal Trials. A President is derelict, if (s)he does not attempt to defend the Executive’s Constitutional powers.
It is very proper to be concerned with the filings of the Obama DOJ in these cases, but it is wrong to make sweeping assessments from them. Waith to see if these cases are appealed. The Independent Institute hung tough during the Bush Administration. Cato Institute came to their senses after 2004. The LP National Officers can go to bloody hell as far as I’m concerned. I want the policies promulgated by the Bush Administration reversed and soundly renounced at least as much as you do. For America’s future, this must be done with authoritativeness, and not on the whim of a different President. It need be firmly grounded into Federal case law. The legislative thieves of our Natural Liberty, and equivocators of torture need be run out of Washington on a rail. Obama’s Administration should be closely watched and dogged, but again, it is counter-productive to exaggerate what can so far be proven. It is best to wait until the preexisting court cases are resolved, and see how the DOJ reacts to unfavorable rulings. If they do not appeal, and let it stand a lawful judicial determinations, then they deserve praise, otherwise, they damn themselves. Look at who the Judges are in the trials that have caused the most controversy. in Jewel v NSA, it’s Judge Vaughn R. Walker, a conservative jurist who has shown himself to be skeptical toward Governmental claims of state secrecy. Then there’s Judge John D. Bates, who handed down the recent opinion denying governmental objections to a small subset of Bagram detainees’ habeas corpus appeals. Another fine conservative jurist, not affected by partisanship. Look at some of the other presiding Judges, where the DOJ is presenting the strongest assertions of governmental overreach. Obama may well in the end turn out to be a political hypocrite, but he may also be venue shopping for where to get strong precedent in favor of civil liberty enter into case law.
There have been dark times for me in the last eight years; bad visions when contemplating where duty to honour fulfilling a long ago freely sworn oath to defend the Constitution, against all enemies foreign and domestic could eventually lead. This fight has aged me more than I’m willing to admit. At the very least Obama has reversed the official policies of human torture as an interrogatory methodology, and that’s one giant leap in the right direction. I’ll give him a few more months.
Rail against the Obama economic initiatives. They are wrong, and I believe will soon lead us into an era of rampant inflation again. Still understand friend, liberty is far more than a freedom to greed. If I must choose between a government that respects habeas corpus, due process of law, and humane treatment of humans detained under the colour of authority imparted by the American flag; or a government that allows me to amass a personal fortune until material desires are satiated; make no mistake on which side of the fence I’ll stand.
d post | Apr 13, 2009 | Reply
Obama said he would support any attempt to filibuster the FISA Amendments Act, because telecom immunity was in it. There was never 41 Senators who voted for rescinding telecom immunity. It could not have been filibustered for that reason alone. On February 12, 2008, Obama clearly stated that he felt the FISA Amendments Act was essential to National Security (disclosure: the link is to my site, but it points directly to Obama’s statement). I’m not supporting Obama’s view, just pointing out the fallacy of the argument that he flip-flopped on FISA. Obama opposed the telecom immunity; sponsored one amendment to strip it from the bill, and voted for all other that would have stripped of limited it. Never was there 41 Senators who voted Yea in any of these amendments, making the filibuster option unavailable for use. Obama also stated that he believed the FISA Amendments legislation was necessary. He lost on his views about telecom immunity in debate, but voted for legislation that he approved of. Where is the flip-flop?
d post | Apr 13, 2009 | Reply
Again, Greenwald said: “a brand new ‘sovereign immunity’ claim of breathtaking scope—never before advanced”. I proved that was not true, citing Cohens v. Virginia, 19 U.S. 6 Wheat. 264 264 (1821). I don’t claim to be a Constitutional scholar, yet was able to find this with a shallow dive cursory search on the net. Greenwald was wrong.
d post | Apr 13, 2009 | Reply
@d post: His campaign promised that he would vote against and filibuster any bill that contained telecom immunity. He voted for a bill with telecom immunity. His campaign did not only promise he would fight for an amendment, but that he would fight any legislation with immunity in it.
Anthony Gregory | Apr 13, 2009 | Reply
d post: Greenwald is not saying “sovereign immunity” was never advanced as a concept, only that this particular argument and context are new.
Anthony Gregory | Apr 13, 2009 | Reply
Mr. Gregory, please offer a citation forl “His campaign promised that he would vote against and filibuster any bill that contained telecom immunity.”
I am not aware of this, and this would change much in my mind about Obama. All I am aware of is that Obama promised he would join any filibuster against the FISA Amendments Bill, predicated on telecom immunity. These are two very different assertions. Yeah, it was a weasel, but it was a forthright and honest weasel.
d post | Apr 13, 2009 | Reply
d post: This was a big scandal and MoveOn and many Obama activists were outraged. Bill Burton, spokesman for the campaign, issued this official statement in October 2007: “To be clear: Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies.”
http://tpmelectioncentral.talkingpointsmemo.com/2007/10/obama_camp_says_it_hell_support_filibuster_of_any_bill_containing_telecom_immunity.php
Anthony Gregory | Apr 13, 2009 | Reply
d post, here’s an example of liberal activism during the FISA Amendments vote:
http://pol.moveon.org/immunity/080621obama.html
Even many Obama partisans recognize the extent to which Obama is continuing and in some cases expanding Bush’s terror policies.
Anthony Gregory | Apr 13, 2009 | Reply
Please, do not offer MoveOn releases as authoritative, but even it does not support your previous claim. I respect RPM, for the same reason I respect Media Matters for America. They are both biased in their POV, but they both offer sound references to back up what they publish.
Now returning to your previous assertion: “His (Obama’s) campaign promised that he would vote against and filibuster any bill that contained telecom immunity.”
The TPM linked article is titled: “Obama Camp Says It: He’ll Support Filibuster Of Any Bill Containing Telecom Immunity”.
In the MoveOn Political Action Release you linked to is found: “Obama went so far as to vow to ‘support a filibuster of any bill that includes retroactive immunity for telecommunications companies.’”
Neither of these mentions that “Obama promised that he would vote against...any bill that contained telecom immunity”.
There was no filibuster against telecom immunity to support, as there was never 41 Senators who would have supported it. Obama never, to my knowledge said he would voted against the FISA bill because it ended up having telecom immunity in it. In fact, Obama’s statement on the Senate floor, February 12, 2008, which was linked to previously, indicates that he was planning to Vote for the FISA Bill, when it came up for final vote. Do not exaggerate facts.
Why hasn’t The Independent Institute spoken out against the Republican threats to filibuster the nomination of Dawn Johnsen to be Assistant Attorney General? She has spoken out vocally against the Bush Admin’s OLC in the past.
Case in point: Senator John Cornyn, who on October 5, 2005, was one of the nine reprehensible Senators who voted against the McCain anti-torture amendment to the FY 2006 DOD Budget legislation, published a press release, February 7, 2008, on his own government subsidise website in which is found:
“Far too many judicial and executive nominees have been delayed by the majority party of the Senate. An up-or-down vote is a matter of fundamental fairness, and it is the Senate’s constitutional duty to act on each nomination. It is also critically important to our judicial system and the proper functioning of our federal government to fill these positions.”
Yet Cornyn is now threatening to boycott the Johnsen nomination, claiming she lacks the “requisite seriousness”. This is clearly Cornyn backtracking on his “up or down vote” tirades which he issued during the Bush Administration. If the Independent Institute really cares about accountability in the Obama Administration, it would behoove them to make at least light mention of this.
d post | Apr 14, 2009 | Reply
d post: Obama didn’t support filibuster. He didn’t just vote for the bill; he voted for cloture. That’s the opposite of supporting a filibuster.
I don’t make a big deal of Republican efforts to filibuster her appointment because I don’t particularly think anyone should be appointed to that position.
Anthony Gregory | Apr 14, 2009 | Reply