- The Washington Times - Monday, January 26, 2009

ANALYSIS/OPINION:

OP-ED:

Watching Eric Holder’s confirmation hearing before the Senate Judiciary Committee, I greatly regretted that the chief legal officer of the “Change We Can Believe In” administration assured us that it would support George W. Bush’s insistence - in the Foreign Intelligence Surveillance Act (FISA) amendments of 2008 - that our telecommunications companies must be immunized from any lawsuits about their complicity in the previous administration’s secret massive surveillance of our telephone and internet communications.

Sen. Obama, after pledging his opposition to that bill by intending to filibuster it, wound up voting for it, to the deep disappointment and surprise of some of his ardent supporters. Now, under President Obama, Verizon, AT&T; and other major telecommunications organizations are assured that they can continue to provide continuous streams of our communications data to the omnivorous National Security Agency, which will share the information with other intelligence agencies.

So broad and sweeping is NSA’s reach under this legislation that, as the ACLU charges in its current lawsuit, “The new law permits the government to conduct intrusive surveillance without ever telling a court who it intends to spy on, what phone lines and email addresses it intends to monitor, where its surveillance targets are located, why it’s conducting the surveillance or whether it suspects any party to the communication of wrongdoing.” Is this President Obama’s America? Of course, our intelligence agencies need the authority to monitor e-mail and Internet communications, but not without reasonable suspicion that this particular American is linked to terrorism or some kind of presumption of innocence. However, this quaint notion, one of the bedrocks of our Constitution, must be too “old-timey” for our brand-new president.

The Obama administration will now be effectively causing the dismissal of many lawsuits by individual Americans who have an understandable eagerness to know whether they have been spied on.

Meanwhile, our new president’s discarding of the Fourth Amendment is supported by the recently revealed August 2008 ruling by the otherwise long-secret Foreign Intelligence Court of Review that says yes, telecommunications companies must cooperate with NSA and other government intelligence operations to intercept our e-mails and phone calls.

This court’s decision is not at all likely to be updated so that it can review the government’s now limitless and warrantless harvesting of our communications under the FISA Amendments Act of 2008 without even a government scrap of evidence that the particular American target is acting or planning against national security. FISA courts trust their government.

Only once before in its 30-year history has this FISA Court of Review issued a public ruling. I think I know what the founders would have thought if an essential part of the first 10 Amendments added to the Constitution could be sundered by judges who immediately slipped back into their secret site. But the Bill of Rights is also so uncool these days.

What did give me hope there would be change we can believe in during the Obama presidency was his choice of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel that advises the president and the executive branch on the constitutionality of their actions. Before she was selected, this professor of constitutional law at Indiana University said, “Our constitutional democracy cannot survive with a government shrouded in secrecy.” So where are we now at the start of the Obama presidency?

Before he was to become attorney general of the “Yes We Can” administration, Holder, addressing the American Constitution Society last June, said: “Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants, and authorized the use of procedures that violate both international law and the United States Constitution. We owe the American people a reckoning.”

Holder and the new president have given us their first reckoning on “secret electronic surveillance against American citizens.” Like the previous government, they approve! I will watch with mounting interest on their other reckonings concerning, for example, CIA’s secret prisons and “renditions” of terrorism suspects to be tortured in other countries.

And with regard to the Obama government’s insistence that telecommunication companies keep on tracking our phone calls and e-mails, will this administration also insist as did the Bush-Cheney team that they can’t tell us whether we are in their hidden databases because that would violate “state secrets?” As we wait, we can discover many secret state dismissals of our constitutional rights by reading the most important book of years to come: James Bamford’s new book “The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping of America” (Doubleday). Among the carefully and clearly sourced facts of the National Security Agency’s past, present and future designs on our personal privacy, once guaranteed by the Fourth Amendment, you will find many chilling facts on the telecommunications companies.

Obama should take a peek. On the other hand, he says he prefers to look forward, not backward. But the Constitution is our constant continual protector.

Nat Hentoff’s column for The Washington Times appears each Monday.

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