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10 June 2013

Obama In His Own Words: Civil Liberties, National Security & Snooping

Via NR:

In light of the president’s Friday’s statement on the NSA surveillance controversy, National Review Online takes a look back on some of the president’s previous statements on Americans’ right to privacy:

1. December 15, 2005, Senate floor statement on the PATRIOT Act: 

This is just plain wrong. Giving law enforcement the tools they need to investigate suspicious activity is one thing – and it’s the right thing – but doing it without any real oversight seriously jeopardizes the rights of all Americans and the ideals America stands for.

2. February 16, 2006, Senate floor statement on the PATRIOT Act Reauthorization:

Soon after the PATRIOT Act passed, a few years before I ever arrived in the Senate, I began hearing concerns from people of every background and political leaning that this law didn’t just provide law enforcement the powers it needed to keep us safe, but powers it didn’t need to invade our privacy without cause or suspicion.

3. May 25, 2006, Senate floor statement on the nomination of General Michael Hayden to the directorship of the CIA:

Over the last six months, Americans have learned that the National Security Agency has been spying on Americans without judicial approval. . . .

We don’t expect the president to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government — Congress and the Judiciary — to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much. . . .

Every democracy is tested when it is faced with a serious threat. As a nation, we have to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power. What protects us, and what distinguishes us, are the procedures we put in place to protect that balance, namely judicial warrants and congressional review. These aren’t arbitrary ideas. These are the concrete safeguards that make sure that surveillance hasn’t gone too far. That someone is watching the watchers. . . .

We need to find a way forward to make sure that we can stop terrorists while protecting the privacy, and liberty, of innocent Americans. We have to find a way to give the president the power he needs to protect us, while making sure he doesn’t abuse that power.”

4. September 27, 2006, Senate floor statement on the Habeas Corpus Amendment:

That is the true genius of America — a faith in simple dreams, an insistence on small miracles; that we can tuck in our children at night and know that they are fed and clothed and safe from harm; that we can say what we think, write what we think, without hearing a sudden knock on the door.

What we cannot continue to do is operate as if we are the weakest nation in the world instead of the strongest one, because that’s not who we are. And that’s not what America has been about historically, and it is starting to warp our domestic policies, as well. We haven’t even talked about civil liberties and the impact of that politics of fear, what that has done to us in terms of undermining basic civil liberties in this country, what it has done in terms of our reputation around the world.

6.  December 24, 2007, “Right vs. Security: Candidates take stance” Des Moines Register:

When I am president, there will be no more illegal wiretapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war.

7. June 20, 2008, Campaign Statement on Foreign Intelligence Surveillance Act:

Given the grave threats that we face, our national security agencies must have the capability to gather intelligence and track down terrorists before they strike, while respecting the rule of law and the privacy and civil liberties of the American people. There is also little doubt that the Bush Administration, with the cooperation of major telecommunications companies, has abused that authority and undermined the Constitution by intercepting the communications of innocent Americans without their knowledge or the required court orders.

That is why last year I opposed the so-called Protect America Act, which expanded the surveillance powers of the government without sufficient independent oversight to protect the privacy and civil liberties of innocent Americans.

8. June 25, 2008, press conference:

QUESTION: Senator, last — last January, you pledged to support a filibuster of a warrantless surveillance bill that included retroactive immunity for telecommunications. Last week, the House passed a bill that effectively gives the telecoms that immunity. You said would support it.

In explaining the change, you said it was — you were talking — it was in light of the security threats facing the country.

Can you explain how the security threats facing the country are any different today than they were in January, when you said you would support a filibuster?

OBAMA: Well, the bill has changed. So, I don’t think the security threats have changed. I think the security threats are similar.

My view on FISA has always been that the issue of the phone companies per se is not one that overrides the security interests of the American people. I do want accountability and making sure that, as I have said before, somebody’s watching the watchers, that you don’t have an administration that feels that it can make its own determinations about when warrantless wiretaps are applicable without going through a FISA court. . . .

I would be happy with a system that discloses what’s happened and make sure that we prevent violations of the American people’s privacy, even if the phone companies are held harmless.

The issue was, can we get to the bottom of what’s been taking place, and, most importantly, do we have safeguards going — in place going into the future so that American civil liberties are not being violated?

9. July 3, 2008, “Response from Barack on FISA,”

In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people. But in a free society, that authority cannot be unlimited. As I’ve said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people.

10. February 23, 2012, Introduction to “Consumer Privacy Bill of Rights:

Americans have always cherished our privacy. From the birth of our republic, we assured ourselves protection against unlawful intrusion into our homes and our personal papers. At the same time, we set up a postal system to enable citizens all over the new nation to engage in commerce and political discourse. Soon after, Congress made it a crime to invade the privacy of the mails. And later we extended privacy protections to new modes of communications such as the telephone, the computer, and eventually email.

Justice Brandeis taught us that privacy is the ‘right to be let alone,’ but we also know that privacy is about much more than just solitude or secrecy. Citizens who feel protected from misuse of their personal information feel free to engage in commerce, to participate in the political process, or to seek needed health care. . . .

Never has privacy been more important than today, in the age of the Internet, the World Wide Web and smart phones. In just the last decade, the Internet has enabled a renewal of direct political engagement by citizens around the globe and an explosion of commerce and innovation creating jobs of the future. Much of this innovation is enabled by novel uses of personal information. So, it is incumbent on us to do what we have done throughout history: apply our timeless privacy values to the new technologies and circumstances of our times. . . .

One thing should be clear, even though we live in a world in which we share personal information more freely than in the past, we must reject the conclusion that privacy is an outmoded value. It has been at the heart of our democracy from its inception, and we need it now more than ever.

From John Sexton:

A "Dear Colleague" letter signed by then-Senator Barack Obama (D-IL) in 2005 urged an end to "government fishing expeditions" under Section 215 of the Patriot Act to gather records on American citizens indiscriminately. The letter was also signed by eight other Senators, including John Kerry (D-MA) and Chuck Hagel (R-ND), who currently serve in President Obama's Cabinet as Secretary of State and Secretary of Defense, respectively. 

The letter is provided below.

The December 14, 2005 letter was passed around in the Senate to gather support for specific changes to the Patriot Act. Sen. Obama was particularly concerned about sections 215 and 505, which give the government two legal means to collect extensive business records (the FISA court and national security letters, respectively). Sen. Obama's "Dear Colleague" letter argues that the requirements for making these requests need to be tightened:

The conference report would allow the government to obtain library, medical and gun records and other sensitive personal information under Section 215 of the Patriot Act on a mere showing that those records are relevant to an authorized intelligence investigation. As business groups like the U.S. Chamber of Commerce have argued, this would allow government fishing expeditions targeting innocent Americans. We believe the government should be required to convince a judge that the records they are seeking have some connection to a suspected terrorist or spy, as the three-part standard in the Senate bill would mandate.

The letter goes on to argue that a stricter standard "will protect innocent Americans from unnecessary surveillance and ensure that government scrutiny is based on individualized suspicion, a fundamental principle of our legal system."

That focus on individualized suspicion was echoed in a public statement Sen. Obama made on the Senate floor one day after the letter was issued. He said it was time "to show the American people that the federal government will only issue warrants and execute searches because it needs to, not because it can."

Later in his speech, 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. This is just plain wrong.

Though that seems to have been directed at the use of national security letters, the principles would seem to apply to the collection of data and records under section 215. As reports last week indicated, the NSA has been collecting everything to which it has access and maintaining a gag order on companies that turn over the data.

The Chamber of Commerce letter which prompted some of Sen. Obama's concerns was sent to Senator Arlen Specter (R-PA) two months earlier on October 4, 2005. It made clear that business groups are concerned about the use of section 215, in part, because of the potential expense of complying with expansive demands for records.

Section 215 of the Act currently allows the Justice Department to obtain secret orders for business records and other tangible items from the Foreign Intelligence Surveillance Court. We support the revision in the Senate bill that requires a statement of fact and some linkage between the records sought and an individual suspected of being a terrorist or spy. As written, the government merely has to certify that the records sought are relevant to an authorized investigation, without stating any underlying facts for the court or judge or showing any nexus with an actual suspect of investigation. As a result, the current Act does not impose any limit on the breadth of records sought, or protect records that are privileged or proprietary. Without such facts, let alone any probable cause of wrongdoing, an unreasonable burden and expense is imposed on businesses to supply potentially large quantities of information that are difficult to collect and transmit, including trade secrets or other sensitive information.

The Chamber and other business groups were worried about the cost of replying to these broad demands for data, but Sen. Obama's letter and speech do not mention costs. His specific concerns were the legality and morality of collecting data on Americans who are not suspected of a crime and who will not be made aware that their data has been collected. Those concerns continued through the 2007 campaign, when presidential candidate Obama gave a major speech in which he called for an end to some of these same practices.

The information leaked last week to the UK Guardian seems to indicate that the President had a change of heart. It's not clear how the broad dragnet of phone metadata or the PRISM collection of email and other data is compatible with Obama's previously expressed concerns about "government fishing expeditions."

SoRo:  As Rex Reed of The New Yorker wrote, Obama's speeches on civil liberties are now regarded as 'hilarious... perhaps the greatest comic masterpieces since A Night at the Opera.'

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