A Dozen Things Read on DU Today re EFF NSA suit (Obama admin motion on illegal wiretapping)

[Sparkly]

I am far from an expert on any of this, but my hair hurts from reading and discussing it here! There are a lot of fundamental misunderstandings.

First, some background info and analysis:

Here is the argument from Electronic Frontier Foundation:
http://www.eff.org/deeplinks/2009/04/obama-doj-worse-than-bush

Here is the Obama administration's motion to dismiss:
http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf

They link to Glenn Greenwald, who in turn links to more background information.
http://www.salon.com/opinion/greenwald/2009/04/06/obama/index.html

And of course, Turley and Olbermann, like it or not:
http://www.msnbc.msn.com/id/3036677/#30096358

Now, some things I've seen on DU today (I'm paraphrasing):

1. "It's okay because it isn't official Obama administration policy." It is an Obama administration filing. Whether or not you call it a "policy," it's still pretty damned important.

2. "The motion says Obama has 'dismissed' wiretapping." I think this is a misunderstanding of a phrase in the motion to dismiss referencing BushCo's "Terrorist Surveillance Program" as no longer "operative." That was put out of use (supposedly) back in 2007. (Which means warrants, by the way, not "no more wiretapping.")

3. "Obama shouldn't insert himself into this because it's a suit against BushCo." It's a suit against the government. It is now for Obama's administration to deal with, and they are. (Having said that, I think it could impact possibilities for lawsuits against Bush admin. personnel later.)

4. "The DOJ has to defend the government." It doesn't have to make the arguments it's making, re state secrets and legal immunity, in attempts to throw the case out.

5. "The motion to dismiss is Obama's way of getting the courts to rule on this illegality once and for all." This doesn't even make any sense.

6. "There are lots and lots of lawsuits out there." What has generated such controversy this week is the motion linked above. There's complicated history but there's not a big soup of confusion about "which case" -- this is the Obama administration's first response to the EFF lawsuit and it's a stunner.

7. "Why, imagine if everybody could just sue the government whenever they wanted to!" Imagine if we couldn't!!

8. "This is a financial lawsuit. The plaintiffs want taxpayer money. If everybody did that, it'd get expensive." Please. This is about the public's right to know whether or not the government is acting legally.

9. "It's only about what BushCo did in the past." It is certainly that, but it also impacts our Constitutional rights going forward.

10. "We can't let state secrets out!" Even just knowing whether or not intel was illegally collected will endanger us all? Please. We already know.

11. "Presidents don't give up power, they just don't." We aren't describing animal behaviors here, as in "cats don't bark, they just don't." This is about the law. If there is a "power" to break the law with impunity, it is a power that must be "given up."

12. "Bush asked Congress to make wiretapping legal, and they did, and now Obama isn't doing it anymore." Uh, not exactly. I'm not saying Obama's administration is eavesdropping without warrants, but Congress did not "make it legal."

Bottom line: civil rights and laws don't mean much if they can't be enforced. This is about holding government accountable for breaking the law. Otherwise we can't ever know, going forward, that the government is acting legally.

To be continued, probably...

[berni_mccoy]

1. You really want to hang this on Obama? Hang it on Congress, as they failed to Impeach Bush

That's where justice was missed. That's where accountability belongs.

It doesn't belong to crucifying Obama because the DoJ is fulfilling it's legally-bound duty to defend the government.

[EFerrari]

14. Not really. Congress didn't file that motion. The Obama DoJ did.

I don't think Obama needs to be crucified but his administration does need to be challenged.

And separating what the Obama DoJ does in court from his policy is just a nonstarter. Their arguments are inextricable from their policy.

[panader0]

2. Thanks for some clarification

The first I heard of this was on KO last night and must say I was very disappointed. The Obama bumper sticker stays on the truck though. But to hear Turley say that this is taking it further than the bush administration is disturbing. I need to learn more before I know what to believe.

[JDPriestly]

29. Obama needs to personally speak to the American people about

why these arguments were made. If he has a good excuse, I would like to know what in the world it is. I cannot imagine that any excuse suffices for hiding violations of the Constitution of this nature.

[Metta]

3. You can count on Turley and Olbermann.

For clear information.

[berni_mccoy]

6. No. You can't. As The Magistrate states: "Turley is a Buffoon"

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x8329016#8329144

[EFerrari]

15. I have a lot of respect for His Honor but if we are to discount out of hand

all of those who have weighed in against this motion, that's a lotta smart people from EFF to Greenwald to ACLU. I don't think I'm prepared to disregard my own gut feeling PLUS all of those people. :shrug:

[GeorgeGist]

19. Sir, we all know ...

that His Magistrate is Sovereign. Just ask him.

[truebrit71]

25. As TrueBrit states the Magistrate is full of excrement...

..Turley has wrong about Clinton, that does NOT make him wrong on everything else...People that use that sort of insular logic are the buffoons...

[madfloridian]

36. The Magistrate thinks many of us are buffoons.

:shrug:

[Still Sensible]

4. I only take issue with your editorial comment on #5

You said "5. 'The motion to dismiss is Obama's way of getting the courts to rule on this illegality once and for all.' This doesn't even make any sense."

The fact is this is something done all the time by attorneys as cases move forward. As a business person, there have been multiple times where my company's attorneys have either brought a new action or filed motions in an ongoing action that are designed to maneuver a desired result out of a court. Sometimes it isn't to get a specific outcome, but just to get the court to make a ruling one way or the other.

It is particularly useful when politics is involved. If the "wiretapping" as practiced under Bush is determined to be illegal by a court, Obama would not suffer political damage. If the same result is done by presidential fiat or by the president spending much political capital to shepherd it through Congress, there is likely a political price to be paid.

This is not to say that this is what the administration is doing one way or another. I have no way of knowing that. This is just to point out that your opinion of point number five is off base.

[Sparkly]

7. I understand maneuvering

but it doesn't make sense to file a motion to dismiss (yes I know it happens all the time) IN ORDER to make sure the case isn't dismissed.

[Still Sensible]

8. Its possible it is just a matter of the

DOJ diligently defending their client. The point has been made on a number of threads trying to get people to understand that the Department of Justice is responsible for the defense of the government.

Since one of the claims seems to be based on the protection of some national security "secrets," it is pretty hard for us in the general public to get a complete picture of what is going on. I thought the purpose of the FISA court was to provide a judicial protection against abuse of the fourth amendment in national security cases. It is possible the end result of this case will be a judicial ruling that puts the FISA court's process in stone.

Personally, I believe the administration is hoping that the court most clearly draw the line between security interests and the fourth amendment so they don't have to expend the president's political capital to do so. I think this is why, to the ire of many here, Obama hasn't just ordered Holder to back off.

[Sparkly]

10. "DOJ Diligence" -- my #4.

"We have secrets, so no, you can't ever know if we're breaking the law." That's essentially what BushCo said, and what Obama's administration is saying now. The government can do whatever it wants, legal or not, without accountability.

In this case, there's ample evidence in the public domain. FISA's policies were already in place. Laws were broken.

"Get A Warrant" is not that complicated. There's no need for a new ruling to draw a new line.

[JDPriestly]

31. The procedure used by the courts in cases involving "state secrets"

require an in camera review of the relevant documents meaning that the judge is permitted to look at the documents and decide whether the state secrets privilege applies and to what extent. Dismissing a case based on state secrets without presenting the documents to the judge is not a good policy. If all the government had to do to get a case against it dismissed was to claim state secrets, we would have no rights at all. That's a potential Trojan horse of a defense.

[JDPriestly]

30. Your business may use the courts to avoid presenting its case to the

people and legislature, but the government should not use the courts to hide information about violations by a prior government of the constitutional rights of Americans.

Obama promised transparency. He promised to listen to the people. Transparency requires that Obama reveal everything about the Bush administration violations of the Constitution and of the privacy rights of the American people. And, we, the people, are demanding that he disclose the requested information. He needs to keep his promises. This lawsuit is his chance to show that he will.

The difference between your business and the Obama government is that your business answers to its owners and shareholders, not to the American people. The Obama government answers to the American people.

Further, the authority of the Obama and Bush administrations is limited by the U.S. Constitution. Your business must comply with the U.S. Constitution in so far as it applies to your business and to the laws of the U.S. and the states in which you operate and are located, but your business does not have the duty to guarantee to us the rights granted to us by the U.S. Constitution and especially by the Bill of Rights. The Bill of Rights applies to the government, not to your business. Your business is, therefore, not bound by the search and seizure provision in the Constitution although it may have to comply with legislation, with laws other than the Constitution, that protect individual privacy including FISA which specifically applied at the relevant time to private entities. So, the posture of your business in the litigation you are talking about is different from that of the Obama administration in this case.

[xchrom]

5. +3

[inna]

9. rec #7 NT

[Supersedeas]

11. nice summation (k&r)

[populistdriven]

12. You missed mine (I dont disagree w/ your conclusion) Consider Obama an Executive Branch Proxy

Obama is doing exactly the correct thing. If he stops it on his own the next Republican will just start it up again x10.

The only way this will ever get permanently fixed is if Obama forces the political system to fight him on it
1) The courts and congress enforce/create more enforceable laws to stop it
2) Congress makes it legal and acceptable with appropriate oversight (I don't think this is possible)

[Sparkly]

13. Thanks for your thoughts, but....

"If he stops it on his own the next Republican will just start it up again x10." With that kind of thinking, we might never right wrongs or enforce laws. It's not "stopping it on his own" -- it's letting the court process work without repeating and even surpassing BushCo arguments.

To your #1 and2: The laws are already clear and enforceable (except for this kind of high-level obstruction).

Wiretapping itself was never entirely illegal, and Congress did clarify the laws after the fact. BushCo then said, "Oh yeah, from now on we'll get warrants like we're s'posed to," basically.

Oversight is important (there was always oversight under FISA in theory), but the courts are still needed to ensure adherence and accountability under the law.

I'm not sure what the "political system" is that Obama should want to fight him, or how that would work.

[populistdriven]

16. If the courts and a Democratic congress cant stop a democratic president

From doing this then he should keep it running until the will exists to stop it for good

[Sparkly]

17. I've got two more.

Again, paraphrasing:

13. "These are Bush officials in the DOJ making these claims and motion to dismiss. And they did it while Obama was overseas!" The filing is from the Obama administration, period. And even while the president is in Europe, he and his administration are aware and in charge of what's going on.

14. "Maybe he needs to eavesdrop without warrants in order to go after the rightwingers." Incredible.

Probably to be continued. (sigh)

[Sparkly]

18. And yet two more...

15. The motion is intentionally bad, and is a ruse to get the Republicans to repeal the Patriot Act!

16. The motion is intentionally bad, and is a ruse to get the BushCo holdovers who wrote it slapped down!

I really wish I were making these things up. :(

[Sparkly]

20. Two more (it gets better!)

Paraphrasing:

17. It's a civil suit, so it doesn't involve any criminal actions.

18. It's a suit for money, so it has nothing to do with the constitution or the legality or illegality of eavesdropping without a warrant.

:crazy:

[Sparkly]

21. And rounding it out to 20

19. The motion was written by overzealous attorneys in the DOJ, and Obama probably didn't know what arguments would be made.

20. Since other names are listed as defendants, Obama can't make a unilateral decision that they might disagree with, so he can't be fully in charge of the government response in this.

Don't know whether to :rofl: or :banghead:

[Sparkly]

26. And two more!!

21. Obama doesn't have input into what AG or DOJ does, and shouldn't, because that would be politicizing the DOJ.

22. This is just a motion that was dismissed in a lawsuit. (Not a motion TO dismiss the lawsuit.)

:wow: :crazy: :wow:

[Stinky The Clown]

22. Some really interesting stats in this thread ....... 480 views, 26 noms, 21 replies, 10 people

There is something wrong with that.

Only ten people weighed in. Some against what was said, some for it. Let's assume, just for the hell of it, that of the 10 unique posters, one was the OP, two were opposed to what was said. That leaves a max of seven who might have given it an R.

19, then, would have given it an R, but never commented.

Why?

Because of the rabid cheerleader gangs who stifle dissent much as they do on Free Republic? Could be.

Could also be that those who gave an R saw no need to reply. Could be. Actually, it often is. But not in this ratio. Most people who give an R like others to know it.

So that brings me back to the rabid cheerleader gangs.

Or not .....

[dgibby]

23. I often recommend without commenting, either because I'm too busy or too tired.

Just because I don't comment on every thread I recommend doesn't mean anything is wrong. It just means I think it's a worthwhile thread and deserves to be seen.

[Stinky The Clown]

24. My comment allows for exactly that

I agree with you completely. I've done it myself.

It just seems the ratio here seems a little unusual ....... or not.

on edit ...... the threads that get lots of noms and few comments generally have no substance or a nonsequitor as their OP. This thread has lots of substance.

[JDPriestly]

32. I wanted to recommend this, but got a message that I could only

recommend threads started within the last 24 hours, so if the stats are confusing, it may be due to the rules of the board.

[Stinky The Clown]

40. One nom one way or another won't cahnge the underlying point.

I am postulating that the rabid cheerleaders and marauding bee swarms stop some people from posting, but since a nom is silent, they do that.

It is just a theory. If correct, then there are elements of Free Republic group censorship-by-bullying at work here.

Or not .....

[lumberjack_jeff]

43. I think the OP and sparkly did a good job.

That's why I didn't comment... I have nothing intelligent to add, they've pretty well covered it.

[McCamy Taylor]

27. Thank you. Obama has too many ties to AT&T to let justice be done. $$$ in politics is criminal.

[Sparkly]

33. Just to be clear, I'm not making any claims about that.

I don't understand what the reasons for the arguments presented in the motion are. I'm just pointing out what incredible twists and spins people here are making to explain it away, as though it can't possibly be what it obviously is.

[JDPriestly]

28. Thanks so much, Sparkly. The arguments presented by the Obama

administration lawyers are very much about Obama. The Obama administration is the client here.

[Sparkly]

34. I don't get that part.

They didn't do anything. I really don't understand why they're making the arguments they are (re state secrets and sovereign immunity).

[mvd]

35. You missed mine, which might be the best argument of all

Let's wait for more clarification from Holder and Obama. Holder did say in an interview with Couric that he will be issuing a report on his review of Bush's state secret claims.

[Sparkly]

41. The argument speaks for itself.

It stretches BushCo's arguments even further.

I was glad to hear that Holder will be reviewing, and probably reversing, some of the "state secret" protections from BushCo. But this motion was filed by his department.

[lumberjack_jeff]

44. "Wait until I explain why we're doing what we're doing"...

... doesn't change the fact that they are doing it.

What do they say? "Actions speak louder than words?"

By their deeds, you can know them. They like warrantless wiretaps just fine.

[HiFructosePronSyrup]

37. I'm still upset over this new Secret Service scandal.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=132&topic_id=8329030&mesg_id=8329030

[Uncle Joe]

38. The Bill of Rights protects all of the American People

from a potentially abusive government, not just the Democrats from an abusive Republican Government or the Republicans from an abusive Democratic Government.

If you go down the road of supporting illegal wiretapping of the American People, you threaten the Constitution by violating the Fourth Amendment and the Ninth Amendment with the potential created by your ill gotten information to threaten the First Amendment by coercion as well.

Should the two major political parties decide to conspire, illegal wiretapping could be a primary threat against the formation of third political parties thus curtailing the American Republic's ability to evolve as society does. We will become static and rigid in our ways of thinking as any one party autocratic nation has and thus I view illegal wiretapping as a national security threat in and of itself.

Thanks for the thread, Sparkly.

Kicked, too late to recommend.

[mvd]

39. It bothers me that they intervened in the Stevens case but not this

I'm still not happy at all. But as I support Obama, I want to see the whole story. Perhaps there are other things up Obama and Holder's sleeves - it's new DOJ policy to be independent from the White House.

[slipslidingaway]

42. The NYT's predictable revelation: new FISA law enabled

massive abuses

http://www.salon.com/opinion/greenwald/2009/04/16/nsa/index.html