HINKLE -- Surveillance Society: Obama Takes a Blue Pencil to the Bill of Rights

No more illegal wiretapping of American citizens . . . .This administration acts like violating civil liberties is the way to enhance our security. It is not.

-- Barack Obama, Aug. 1, 2007

. . .

With the world's attention riveted by the earthquake in Haiti, few noticed when, late last month, a federal judge took a pair of sharp scissors to the Bill of Rights. But on Jan. 22, federal district judge Vaughan Walker agreed to dismiss a lawsuit over warrantless wiretapping, as the administration -- the current one -- had requested.

The suit was the second of its type to get tossed out. The first suit was filed against AT&T, and it accused the company of forking over to federal agents the calls and e-mails of customers in the United States. But Walker dismissed that suit last June, after Congress passed legislation granting retroactive immunity to telecom companies for cooperating with federal surveillance efforts.

The second suit was filed against the National Security Agency. Walker threw it out on the grounds that the plaintiffs could not show they had been individually harmed, because they could not "differentiate themselves from the mass of telephone and Internet users in the United States." They needed a "direct, personal stake" to claim standing for the right to sue, not merely "a right to have the government follow the law."

This seems to suggest that as long as the government is hoovering up vast amounts of communications records from many thousands of Americans -- "dragnet surveillance," as the Electronic Frontier Foundation calls it -- no harm done: The more people the government wiretaps, the more authority the federal government has to do so.

That is . . . interesting. Because the Obama administration had asked to have the case dismissed on entirely different grounds -- the state-secrets doctrine: Litigating the dispute would require the government to disclose "a range of facts concerning whether, when, how, why, and under what authority the NSA may have utilized certain intelligence sources and methods," it argued, which could lead to "exceptionally grave harm to national security."

"Congress has not waived sovereign immunity," says the administration's brief, "and summary judgment for the Government on all of plaintiffs' remaining claims against all parties . . . is required because information necessary to litigate plaintiffs' claims is properly subject to and excluded from use in this case by the state secrets privilege."

This is precisely the position taken by the Bush administration. Indeed, by some lights the Obama position is even worse, since the Bush program was created while the country was in full panic mode after 9/11. Obama not only has had time to reflect from a distance; having reflected, he concluded the Bush position was wrong. Then he turned around and embraced it.

All of which raises two points.

First, candidate Obama's vilification of the Bush administration's warrantless-wiretapping program may have been profoundly naIve. Perhaps, once in office and provided with highly classified information about the true nature of the terrorist threat, he realized the country continues to face tremendous peril. And that -- just as the Bush administration had claimed -- the warrantless-wiretapping program had indeed helped thwart plots that would make 9/11 pale by comparison.

This is rank speculation and cannot be proved or disproved, at least here. But it is frightening to contemplate, and seems at least plausible. What else could make such a left-wing former professor of constitutional law go back on his fervent word about civil liberties?

Second -- and equally frightening -- the Obama administration seems to be arguing that the Fourth Amendment is, in certain circumstances, null and void.

The amendment guarantees that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." There's no "unless" clause. Now suppose someone thinks the NSA has violated his Fourth Amendment rights by spying on him. The only way to find out is to take the issue to court -- where the administration says the case should be summarily dismissed. Yet if individuals can't even learn whether their rights have been violated, then they certainly can't seek redress, or generate pressure to change surveillance policies.

Which means, if the Obama administration continues to get its way, the federal government effectively will have carte blanche to spy on American citizens.

The two points lead to one of two conclusions. Either President Obama owes the Bush administration a big apology -- or he owes the rest of us a very good explanation.

The spirit of liberty is the spirit which is not too sure that it is right.

--Judge Learned Hand.

Contact A. Barton Hinkle at (804) 649-6627 or bhinkle@timesdispatch.com.