George W. Bush's 4th term?
By GLENN THRUSH | 6/6/13 1:14 PM EDT
The outrage over President Barack Obama’s authorization of a nearly limitless federal dive into Americans’ phone records obscures a hiding-in-plain-sight truth about the 44th president many of his supporters have overlooked for years:
For all his campaign-trail talk of running the “most transparent administration” in U.S history, never promised to reverse the 43rd president’s policies on domestic anti-terrorism surveillance — and he’s been good on his word.
Obama’s effort to strike what he’s repeatedly called “a balance” between personal liberty and homeland security has exposed what amounts to a split political personality: Candidate Obama often spoke about personal freedom with the passion of a constitutional lawyer — while Commander-in-Chief Obama has embraced and expanded Bush-era surveillance efforts like the 2011 extension of the Patriot Act, which paved the way for a secret court order allowing the gathering of Verizon phone records.
In an irony now being savored by his conservative critics, Obama administration officials are now relying on Republicans to defend him against charges from liberals and the libertarian right that he’s recklessly prioritized national security over personal liberty.
“Drone strikes. Wiretaps. Gitmo. Renditions. Military commissions. Obama is carrying out Bush’s 4th term, yet he attacked Bush for violating the Constitution,” said Ari Fleischer, George W. Bush’s press secretary.
“He’s helping keep the nation safe, vindicating President Bush, all while putting a bipartisan stamp on how to fight terror,” Fleischer added.
Sen. Lindsey Graham (R-S.C.) urged Attorney General Eric Holder defended the record-grab Thursday, publicly urging Attorney General Eric Holder to stay the course even if some corrections needed to be made.
“You keep up what you’re doing,” Graham said. “President Bush started it. President Obama’s continuing it. We need it, from my point of view.”
White House officials declined to comment on the record for this story.
By seeking what administration officials call “metadata” — phone numbers, the duration of calls, frequency of contact between individual callers at home and abroad — Obama can technically deny that the surveillance is deeply intrusive because actual wiretaps require additional court orders in most cases.
But the data cadged in the Verizon case can be used as a menu — giving agents an idea of which individuals or organizations warrant further scrutiny.
“The information acquired does not include the content of any communications or the name of any subscriber,” said an aide who requested to be identified only as a “senior administration official” as a condition of sharing the administration’s thinking on the matter.
“It relates exclusively to metadata, such as a telephone number or the length of a call. Information of the sort described… has been a critical tool in protecting the nation from terrorist threats to the United States, as it allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.”
But critics in Obama’s own party say the net cast by the order poses a grave threat to free expression and the right Americans have — and Obama has so often championed — to live their lives without Big Brother poking into their affairs.
“This type of secret bulk data collection is an outrageous breach of Americans’ privacy,” said Sen. Jeff Merkley (D-Ore.) who has repeatedly raised concerns about surveillance overreach by the administration.
“I have had significant concerns about the intelligence community over-collecting information about Americans’ telephone calls, emails, and other records and that is why I voted against the reauthorization of the PATRIOT Act provisions in 2011 and the reauthorization of the FISA Amendments Act just six months ago.”
“This bulk data collection is being done under interpretations of the law that have been kept secret from the public. Significant FISA court opinions that determine the scope of our laws should be declassified. Can the FBI or the NSA really claim that they need data scooped up on tens of millions of Americans?”
Sen. Bernie Sanders (D-Vt.), one of the few Obama allies to vote against the 2011 extension of the Patriot Act, said, “The United States should not be accumulating phone records on tens of millions of innocent Americans. That is not what democracy is about. That is not what freedom is about.”
That tone was strikingly similar to the tone of Obama’s own comments when he was a back-bencher in the upper chamber.
In 2005, then-Sen. Obama spoke out against the Bush-sponsored Patriot Act extension on the grounds that FBI agents would have been given wide berth in obtaining personal records on people suspected of terrorist links without having to get their searches approved by a federal judge under the Federal Intelligence Surveillance Act
“This is legislation that puts our own Justice Department above the law,” he said during a much-publicized Senate floor speech at the time.
“[F]ederal agents [can] conduct any search on any American, no matter how extensive or wide-ranging, without ever going before a judge to prove that the search is necessary. They simply need sign-off from a local FBI official,” he added.
“If someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document - through library books they’ve read and phone calls they’ve made - this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear their plea, no jury will hear their case.”
Yet despite the vehemence of his remarks — which were to be repeated on the campaign trail two years later — Obama ultimately backed a 2006 compromise bill that limited but didn’t eliminate the use of so-called “National Security letters” allowing the FBI broad surveillance power without a court order.
Like many Democrats, Obama was never philosophically opposed to deep dives by federal authorities if they served the broader interest of national security.
Moreover, when it came time to extend the Patriot Act in 2011, Obama, now president, quietly sought to expand the reach of extra-judicial surveillance outside the jurisdiction of the FISA court.
In fact, several news organizations reported at the time that Obama’s lawyers wanted to add a new provision to include internet browsing and e-mail records — “electronic communication transactional records” that didn’t include content — to a list of sources the FBI could demand without a judge’s approval.
Stewart A. Baker, a former senior Bush administration Homeland Security official, told the Washington Post in 2010 that the change meant investigations would broaden the bureau’s authority by making it “faster and easier to get the data.”
The provision was eventually added to the bill.
For all the criticism the administration is attracting for the Verizon bombshell, Obama aides are counting on a very Bush-like political calculation that carried the president through his first term and second election: That the public’s desire for protection outweighs their outrage over even a massive breach of privacy.
And here, at long last, is one issue where Obama can legitimately claim to have bipartisan backing.
Thursday morning at a hearing scheduled long before Glenn Greenwald of U.K.’s Guardian newspaper broke the NSA/Verizon story, Holder said the Obama administration kept Congress informed completely in the loop about a Verizon dragnet that the administration says is authorized by the Foreign Intelligence Surveillance Court.
“Members of Congress have been fully briefed as these issues, these matters have been underway,” Holder said at a pre-scheduled Senate hearing Thursday.
But even Rep. James Sensenbrenner (R-Wisc.), the author of the Patriot Act, wasn’t comfortable with the turn things have taken, saying he is “extremely troubled” by a move he called “excessive and un-American.”
“While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses,” Sensenbrenner said. “The Bureau’s broad application for phone records was made under the so-called business records provision of the Act. I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act.”
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