A new Obama administration would be a timely opportunity to re-examine some of the surveillant practices of the last few years, and in particular the clandestine surveillance on Americans performed by the government (warrantless wiretapping).
Two stories today, one in the New York Times by Eric Lichblau and James Risen (who broke the warrantless wiretapping story in 2005, forcing the Bush administration to admit it was breaking the law) and one at EFF’s blog situate FISA and surveillance. Obama technically has the power to overturn or decline to appeal rulings against the government, in distinction to the Bush administration (EFF is the Electronic Frontier Foundation). But will he? Commentators are starting to say that the signs are poor that Obama will undermine the surveillance society:
This is what President Obama could end, even without Congress acting. He could instruct his agencies to follow the old FISA rules and United States Signals Intelligence Directive 18, or USSID 18 — an NSA rule that bars overseas surveillance of Americans without authorization and probable cause. Those protections, and the basic Constitutional fourth amendment protection, have been all but eradicated by the Bush administration and have to be restored if the Obama administration hopes bring this country back under the rule of law.
Whether this will happen is now seriously in question, with reports that former National Counterrorism Center head John Brennan is the favorite for the CIA director nomination. This pick could create real conflict within the new administration: Brennan continues to defend the “enhanced interrogation” techniques and rendition that Obama himself has renounced. On this, I can only reiterate what Glenn says:
To appoint someone as CIA Director or Director of National Intelligence who was one of George Tenet’s closest aides when The Dark Side of the last eight years was conceived and implemented, and who, to this day, continues to defend and support policies such as “enhanced interrogation techniques” and rendition (to say nothing of telecom immunity and warrantless eavesdropping), is to cross multiple lines that no Obama supporter should sanction. Truly turning a page on the grotesque abuses of the last eight years requires both symbolism (closing Guantanamo) and substantive policy changes (compelling adherence to the Army Field Manual, ensuring due process rights for all detainees, ending rendition, restoring safeguards on surveillance powers). Appointing John Brennan to a position of high authority would be to affirm and embrace, not repudiate, the darkest aspects of the last eight years.
We at EFF — along with many of Obama’s supporters — were sorely disappointed when he failed to uphold his promise to filibuster any bill that contained immunity, and instead reversed course and ultimately voted for passage of the FAA.
Plus ça change. So the panopticon is not dismantled.
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