Libertarian Hawk


Legitimate Executive Powers: Obama’s Weapons Against the Citizenry

June 12, 2013 By: Scott Spiegel Category: War on Terror

big-brother-obama_2Last Wednesday, reporter Glenn Greenwald revealed in the UK Guardian that the FBI and National Security Agency were implementing a top-secret, court-ordered program requiring Verizon Business Network Services to turn over daily “telephony metadata” logs on hundreds of millions of calls it processes for its subscribers.

This “transactional data” excludes the content of the calls, but includes the numbers from which they originate and to which they are made, as well as subscriber IDs, calling card numbers, and the time and length of the calls.

The order authorizing the program was issued by District Court and former U.S. Foreign Intelligence Surveillance Court Justice Roger Vinson, who also happens to be the first federal judge to have ruled that Obamacare’s insurance mandate is unconstitutional.  (Clearly Vinson knows a thing or two about what’s constitutional and what’s not.)  Vinson agreed with the administration’s argument that the NSA’s phone surveillance is justified under the Business Records section of the Patriot Act.

On Thursday, The Guardian revealed that the NSA’s surveillance activities also included tapping into the servers of Internet and social networking companies such as Google, Microsoft, AOL, Apple, Facebook, and YouTube.  Project PRISM, as it is known, allows the government to access users’ search histories, file transfers, e-mail, chats, login information, and social network profiles.

As it happens, in 2006 reporters revealed that the Bush administration had also been accessing metadata on millions of phone records from major telephone carriers, including Verizon, AT&T, and BellSouth.  Democrats including Senator Barack Obama railed against the Bush administration’s “spying” on Americans, but until Greenwald’s report, it was not known that President Obama had continued and expanded Bush’s efforts.

Ironically, most on the left, including The New York Times, the American Civil Liberties Union, and numerous Democratic congressmen, have decried Obama’s program—no doubt because they fear the surveillance program might be effective in helping catch Islamic terrorists.  (Recall how they similarly opposed Obama’s continuation of 95% of his predecessor’s successful counterterrorism policies.  Liberals adore Obama, but even they can’t tolerate his taking actions that are in the country’s national security interest.)

The Obama administration has defended the NSA surveillance program, arguing that it helped thwart a major terrorist attack in New York in 2009.  Senate Intelligence Chair Dianne Feinstein maintains that the court order is merely a three-month renewal of a program that has been running since 2006.  Defenders of the program remind the public that NSA officials must still go to court to get approval to access content they flag as suspicious based on metadata.

The problem with the NSA program isn’t its surveillance activities, for which a reasonable case can be made.  Radical anti-interventionist libertarian Rand Paul exemplifies the superficial stance against the program when he argues that it involves collecting “hundreds of millions”—gasp!—of records from a country with, um, hundreds of millions of residents.

The problem with the NSA program isn’t its ability to function after former NSA employee Edward Snowden leaked its existence to journalists, an act some have called treasonous.  The Bush administration was able to continue its program in altered form even after The New York Times reported on a leak about it in 2006.

The problem with the Obama administration’s NSA program is the Obama administration, which poisons everything it touches, from gun control (see Fast and Furious) to implementation of its own stimulus act (see Obama’s firing of numerous Inspectors General).

The problem with Obama’s NSA program is that Obama cannot be trusted with sensitive information.  Consider:

When evidence suggested that al-Qaeda affiliates were behind a murderous attack on our Benghazi consulate, the administration altered its official report to remove such references, sent out its Ambassador to the United Nations to lie about the cause of the attack until the Presidential election was over, and threw an innocent filmmaker in jail for a year on trumped-up probation-violation charges.

High-level administration officials were likely aware of and probably approved a comprehensive IRS effort to delay for years the tax-exempt status of hundreds of conservative and Tea Party organizations, and to target major Republican donors for harassment, schemes whose sordid details journalists are still uncovering.

The administration’s Justice Department was caught subpoenaing AP reporters’ phone and e-mail records, and spuriously identifying Fox News reporter James Rosen as a co-conspirator in a national security leak, scandals we learned about only because of the efforts of intrepid reporters.

Under a responsible administration, the NSA’s surveillance program would provoke debate, but perhaps not grave concern.  Under this administration, the agency’s intelligence-gathering capabilities—like most other executive powers Obama has been granted, and many he has not—should send chills down our spines.

Previously published in modified form at Red Alert Politics

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DOMA Is Not Roe v. Wade

March 02, 2011 By: Scott Spiegel Category: Gay Rights


Image by Scott Spiegel via Flickr

President Obama announced last week that his Attorney General Eric Holder would no longer be defending the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which Congress passed in 1996.

His declaration may have had something to do with the fact that Ninth Circuit Court Justice Stephen Reinhardt and federal trial judge Joseph Tauro of Massachusetts ruled across three separate cases in 2009 and 2010 that DOMA was unconstitutional.

Obama’s Justice Department will be submitting its official response next week to two fresh lawsuits against DOMA filed last year in New York and Connecticut.  The Department is not expected to argue in favor of the law’s constitutionality.

Constitution-revering conservatives have responded to Obama’s announcement by howling that there is no precedent for his declaration in all of American history, that Obama is overturning DOMA just because he doesn’t like it, and that his actions may be grounds for impeachment.

Jonah Goldberg of National Review claimed Obama has “thrown in the towel on the Constitution.”  On her radio show, Monica Crowley stooped to the level of Wisconsin pro-union protestors by labeling the president “Oba-Mubarak.”

Newt Gingrich declared that Obama’s actions could lead to a constitutional crisis.  He offered the hypothetical counterexample of President Sarah Palin declaring that she doesn’t like Roe v. Wade, thinks it’s unconstitutional, and will no longer allow the executive to enforce the right to an abortion.

There’s just one little difference between the Obama and Gingrich scenarios: no court has ever ruled Roe v. Wade unconstitutional.

The Supreme Court, the highest court in the land, had the last word on that matter in 1973, and no lower court or the Supreme Court has declared the unconstitutionality of the fundamental right to an abortion since then.  State courts have chipped away at the edges of the ruling and allowed restrictions on abortion, some of which the Supreme Court has upheld, but no court has ever reversed the Supreme Court’s ruling on the basic right to an abortion.  In fact, because the Supreme Court has already ruled on the matter, only that court would be able to reverse its 1973 ruling.

In the Gingrich scenario, Palin would indeed be imposing her preference on the nation illegally.

In the Obama scenario, in contrast, his Justice Department would be upholding the interpretation of the law offered by two members of the judiciary in three different court cases.

Obama hasn’t even said his Justice Department isn’t going to enforce the law—only that it will not be arguing in court that the law is constitutional.  Which, you may remember, is what two of the highest courts in the land to rule on the constitutionality of DOMA have found in three separate cases.

Even after Obama’s announcement, courts will still be able to rule on DOMA, regardless of the arguments Eric Holder declines to proffer in support of it.  Outside parties, including Congressmen who support the law, will still be able to file friend-of-the-court briefs outlining the exact same by-now-familiar arguments the Justice Department will no longer be citing.

Other conservatives who are upset with Obama’s actions have argued that Florida District Court Justice Roger Vinson recently found ObamaCare unconstitutional, yet Obama is still implementing that law.

Well, yes—clearly Obama is ideologically disposed toward overturning DOMA and not Roe v. Wade or ObamaCare.  But that doesn’t mean he does not have the prerogative to disavow the identified-as-unconstitutional DOMA, or the obligation to uphold the never-identified-as-unconstitutional Roe v. Wade.

As for ObamaCare, two justices had already (ludicrously) upheld the constitutionality of ObamaCare before Virginia District Justice Henry Hudson ruled the individual mandate component of the bill unconstitutional last December, and before Justice Vinson ruled the entire bill unconstitutional in January.  So while one would hope for Obama to take Hudson and Vinson’s cues once their rulings came down, one wouldn’t hold one’s breath.  A third justice has since found ObamaCare constitutional, which sadly gives liberals more cover for continuing to defend ObamaCare until the Supreme Court rules on it.

In the same interview in which he claimed Obama couldn’t decline to enforce DOMA, Gingrich declared that Justice Vinson’s ruling represented “solid grounds for the House to cut off all funding for implementation.”  Apparently the link between Gingrich’s stances on DOMA and ObamaCare was that both criticized supposedly unconstitutional actions of Obama’s.  Yet evidently Justice Reinhardt and Tauro’s rulings on the unconstitutionality of DOMA didn’t figure into Gingrich’s equation.

Other conservatives have questioned the timing of Obama’s announcement, suggesting that it was made to distract voters from the economy or set a trap for Republicans—as though this determined the propriety of Obama’s non-enforcement of a law.  Gingrich noted that Obama had campaigned for president in opposition to gay marriage and promised to uphold DOMA, and is therefore breaking a campaign pledge—again, as though this has anything to do with the legality of Obama’s decision not to defend the law.

Without trying to read Obama’s mind, I can say only that his motives for no longer defending DOMA have absolutely nothing to do with the constitutional appropriateness of his decision.

Here are some hypothetical actions that would be unconstitutional if Obama actually took them: Not enforcing DOMA after the Supreme Court ruled it constitutional.  Enforcing DOMA after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after the Supreme Court ruled it unconstitutional.  Implementing ObamaCare after Congress cut off funding for implementing it.

But deciding not to defend an argument behind one section of a law while still enforcing it, when two of the highest courts in the land have deemed the law unconstitutional in three cases—sorry, but that is not unconstitutional.

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