So Much For 'Change You Can Believe In'

The Obama administration seems to have done a complete 180 on its position regarding executive authority to spy on citizens, and while the cynic in me isn't particularly surprised, the optimist in me really feels let down, and the constitutionalist is just plain pissed off.

Long time readers will recall that I took great exception to some of the extra-Constitutional activities of the previous administration, including:

1. their insane justifications for "interrogation techniques" which when perpetrated upon us by others in past wars we've tried as torture and war crimes
2. their use of semantic tricks such as defining new categories ("enemy combatant") to circumvent the existing laws for treatment of prisoners in war time
3. their use of warrantless wiretaps even on American citizens, in clear violation of the Fourth Amendment's prohibition against unreasonable search and seizure, especially without warrants

It is this last one which concerns me today, because the current administration (in the form of Attorney General Eric Holder), rather than backing away from these activities, has asserted not only the right of the government to continue doing these things, but has asserted rights in excess of those claimed by the Bush administration.

To wit: The case of Jewel vs. the NSA deals with people who are suing over AT&T's alleged transmission of their telephone information to the NSA.

Holder has asserted to the judge that defending against these claims would violate "state's secret privileges". In effect, he's telling the judge "You can't let these people sue, because whatever we did, legal or not, would violate state secrets for us to defend against it", which essentially also says "We as the government can do whatever we like, because we refuse to acknowledge anyone's right to hold our feet to the fire if we violate pesky little things like the law, the Constitution or citizens' rights".

But the really heinous part is that not only are they arguing against even the possibility of any findings that laws might have been broken and rights may have been violated, they also argue something called "sovereign immunity", which sounds a whole lot to me like "unitary executive power" in different clothing. Under this, the administration claims that the government can only be sued if the information gathered by such wiretapping is released. As someone on one of the radio shows said this morning, this is kind of like claiming that if I steal money from you, I can only be prosecuted if I actually spend the money I stole.

The administration further asserts that not only can they not be required to defend against this suit because it might require the release of classified information about the NSA, they even assert that being forced to confirm or deny facts which are already publicly confirmed via other sources would violate these state secrets.

Now, I understand national security. I do. And there are times when it can be used legitimately. But it galls me that the federal government has become so large that it now feels justified in acting however it feels because it alone has the right to assert when a case against it can validly be heard.

Imagine a murderer with the power to decide which evidence the police could use against him, or able to successfully get the case against him dismissed on his assertion alone that defending himself against the charges would involve releasing information that must vitally be kept secret.

We have laws. These laws are supposed to apply to everyone. Instead, we have a state government that seizes power from the citizens that it isn't due under the constitution, a federal government which likewise seizes from the states powers which are constitutionally not theirs to grab, and an executive branch which continues to view itself not as one of three co-equal branches of government, but as essentially an elected king. That anyone who craved power enough to run for the office wouldn't likely voluntarily cede any of it is not surprising.

Still, this is one of the promises Obama made to us when he was running, that he would put a stop to flagrant abuse of executive power and restore law and order. To have him continue to assert the same tactics in defense of what was, according to the constitutional scholars I've read, pretty clearly a violation of the Constitution is galling.

(Much of the information for this post came from last night's Countdown with Keith Olbermann).