The new president has changed his tune from the campaign trail on some surveillance policies.
Saturday, March 21, 2009
by Shane Harris
It was February 12, 2008, and then-Sen. Barack Obama faced an easy vote. The Senate was about to take up the hotly debated question of whether telecommunications companies should be exempt from civil lawsuits alleging that they helped the Bush administration illegally spy on Americans. Opponents of the terrorist surveillance program, which bypassed federal law calling for court-approved search warrants for such eavesdropping, brought the suits, and Obama agreed with the litigants that if companies broke the law -- regardless of the assurances they received from the government that their participation was lawful -- they should be held to account. Obama's opposition to the so-called immunity provision during his quest for the Democratic presidential nomination solidified his support among liberal activists, the technologically savvy Net-roots of his party, and burnished his anti-Bush bona fides.
The Senate took up the controversy that morning, as an amendment to a pending bill that would modify the Foreign Intelligence Surveillance Act. (This was the law that the litigants accused the administration of violating.) The proposed revisions to FISA would dramatically expand the government's surveillance capabilities, giving it greater leeway to conduct surveillance of terrorism suspects and other foreign groups without obtaining individual search warrants from the FISA court. The communications of American citizens would undoubtedly be caught up in that electronic dragnet. Whether the immunity provision should be part of this new law was on the table. Obama voted to remove it, putting him at odds with the majority of his colleagues.
So, with the Senate in support of immunity, that left the question of whether Obama would oppose the overall changes to FISA, which the Senate took up later the same day. When the moment came to cast his vote, however, Obama didn't vote at all. He was one of three senators to take no position; the others were Hillary Rodham Clinton, then his chief rival for the Democratic nomination, and Republican Lindsey Graham of South Carolina. John McCain, the presumptive Republican presidential nominee, voted for the bill.
Obama had seemingly backed off his opposition to Bush-era surveillance policies. His position was challenged again a few weeks later when the candidate's top intelligence adviser said in an interview with National Journal that he personally favored immunity for the telecom companies. John Brennan's remarks ignited controversy, and some of Obama's supporters called upon the candidate to dismiss him. That would affirm, they seemed to think, Obama's loyal opposition to the legislation moving through Congress, which Brennan, in the interview, said had become "embroiled now in a partisan debate in some quarters."
Obama was still on record against immunity and through a spokesperson confirmed that he thought the companies' liability was "more appropriately a decision for the judiciary."
In July, almost five months after the immunity vote, Obama finally had to face the music. The Senate took up another FISA-changing bill, which the House had passed. It included immunity, and it would give the government broad authority to monitor communications outside the traditional search-warrant process. Sixty-nine senators voted in favor of the bill. Obama was one of them. President Bush signed the bill into law the next day.
No Turning Back
Candidate Obama's reversal on warrantless surveillance was the first major break with his most loyal supporters, and it remains a sore spot during the first months of his presidency. On his second full day in office, Obama earned some goodwill among the base by issuing two important executive orders. One would close the U.S. prison at Guantanamo Bay within a year (although the fate of the nearly 250 prisoners there remains very much in question), and the other requires the CIA to follow the same interrogation rules as the military. That order effectively barred waterboarding, a harsh interrogation technique that intelligence officials say was rarely used but that many experts say is torture, and certainly was a potent symbol of past policies that Obama wanted to cleanly break from.
But on the hot-button issue of surveillance, Obama has shown no intention to turn back or break in a new direction. Indeed, most of what the Bush administration did under the cover of secrecy is now legal under the surveillance law that Obama voted for last summer, seven weeks before he accepted the Democratic nomination for president. Obama has chosen Brennan, his onetime intelligence adviser and telecom immunity supporter, to be his chief homeland-security and counter-terrorism adviser in the White House. And in January, a federal Appeals Court strengthened Obama's hand when it published its opinion that the executive branch can claim an exemption to the Fourth Amendment's requirement for a court-ordered search warrant. If the government is monitoring the communications of foreigners overseas, it need not seek a warrant to do so, even if Americans are a party to those communications, the court ruled. When it comes to his surveillance authorities, then, Obama has clear sailing ahead of him and the wind at his back.
The opinion from the Foreign Intelligence Surveillance Court of Review -- only the second in the history of this panel, which was set up to review FISA-related cases -- doesn't settle the issue of whether President Bush violated the law when he authorized warrantless surveillance after the 9/11 attacks. Nor does it give Obama free rein to target Americans directly without search warrants. The law for which he voted forbids it. "This was not a blank check by any means," legal scholar Orin Kerr wrote of the court opinion and its implications for future presidents.
Steven Schwinn, an associate professor of constitutional law at John Marshall Law School in Chicago, also stressed that the court opinion applies only to surveillance activities that Congress has specifically authorized in the various FISA acts. "It said nothing about the president's inherent Article II power to authorize the secret surveillance program," Schwinn wrote. (Bush had asserted an "extravagant" interpretation of his constitutional surveillance authorities, according to former Justice Department official Jack Goldsmith, who threatened to resign in 2004 over aspects of the surveillance program that he believed could not be supported by law.) "Bush administration supporters who praise this opinion as a vindication of Bush's sweeping claims of inherent Article II powers simply misread the opinion," Schwinn wrote.
But just because Obama's berth is wide doesn't mean it's free of conflict. The legal opinions justifying warrantless surveillance remain secret. And electronic privacy and civil-liberties groups are still pressing the president to circumvent the immunity provisions that he ultimately voted for, a potentially tricky legal maneuver that would also hold tremendous political consequences. Both McCain and Clinton questioned whether candidate Obama had the requisite experience and fortitude to fight a global war on terrorism; in that conflict, surveillance has been one of the United States' primary weapons.
The Legacy Question
Obama faces pressure from his base to make a demonstrable turn away from Bush-era policies. The Electronic Frontier Foundation, for one, wants the administration to put the civil lawsuits against the telecommunications companies back in play. Kevin Bankston, a senior staff attorney with the group, said that could happen in any one of a few ways, all of which involve the new attorney general, Eric Holder.
First, Obama could tell Holder to simply withdraw the government's current motion to dismiss the lawsuits based on the immunity provision, reversing course from the Bush Justice Department. Or, Obama could tell Holder to ask the courts to temporarily stay the proceedings while the administration comes up to speed on the cases and awaits the findings of several inspectors general, whose reports on the warrantless surveillance program are expected in July.
But there is a third route, Bankston said. Obama could instruct Holder not to appeal a case that Bankston's group brought last December before a federal District Court judge. It argues that the immunity provision violates constitutional separation of powers because the attorney general -- not a judge -- gets to determine unilaterally that any warrantless surveillance was both lawful and deemed necessary to protect national security. If the attorney general says that the surveillance met those criteria, then by law a judge must dismiss any lawsuit against a telecom company.
It's doubtful that the judge who is pondering the case will pick that fight with the new administration. Judge Vaughn Walker, the chief judge of the Northern District of California, heard oral arguments before Obama nominated Holder. "Why shouldn't the court wait to see what the new attorney general will do?" the judge asked.
During his confirmation hearing, Holder gave the response.
"President-elect Obama was against the [immunity provision]," he said, "but nevertheless voted for the statute that contained that immunity." The immunity question is now a matter of law, Holder said, and "the duty of the Justice Department is to defend statutes that have been passed by Congress, unless there is some very compelling reason not to.
"It would seem to me," he continued, "that unless there are compelling reasons, even given the opposition ... I don't think that we would reverse course."
That could well be the new president's guiding mantra when it comes to his broad, and now legal, surveillance powers.
This is the ninth in an ongoing series looking at an issue on President Obama's agenda. The entire series can be found at NationalJournal.com/agenda. Next week: Criminal justice.