A STEAMING SUMMER OF DISCONTENT

by H. N. Burdett

In the dingiest of dead-end saloons at whatever hereafter destination the ghosts of J. Edgar Hoover and Senator Joe McCarthy have been assigned, those brothers under the skin in their perverted sense of patriotism are high-fiving and hoisting back a celebratory shot or two. In a precinct presumably far removed, another ghost, that of George Orwell, who foretold the nightmare of "Big Brother is watching you" -- constant surveillance destroying the fundamental right to privacy -- painfully cringes at his own prescience. On Mount Rushmore, the immortals so inscribed shudder in disbelief.

Barack Obama, who was elected little more than a year and a half ago as the most genuinely progressive President of the United States since Franklin D. Roosevelt, appears to be buckling to the hobgoblins of temptation hell-bent on seducing politicians into betraying their better angels and choosing the course of convenient pragmatism over inviolable principle.

The president's support among liberals was so securely locked and loaded that, though they groused and grumbled when he doubled down on Afghanistan rather than facilitating the process of bringing U.S. troops home from the longest, most hopeless war in our history, there was no stampeding to the exits, hardly even a noticeable breaking of ranks.

To anyone questioning just what national interests were served by committing another generation of American treasure to propping up and renting a reprehensible, wheeling and dealing puppet in Kabul, the response was smoke and mirrors rather than logic: U.S. abandonment of that ill-fated land would assure a triumphal return of the Taliban with the accompanying certainty of a bloody retaliatory reign of terror to punish collaborators, compounded by a resumption of unspeakable brutalization of women. All only too probable, but failing to answer the more relevant question: Will the Taliban not return whenever U.S. troops depart from Afghanistan, whether it is next month, next year, or in the next decade?

Meanwhile, one of the more ill-advised, ill-conceived and ill-managed armed conflicts in human annals slogs on ruthlessly, mindlessly and endlessly toward its 10th anniversary, with one of the world's wealthiest nations albeit deeply in debt but determined to sink even deeper seeking to stabilize one of the world's poorest nations with literally nothing left to lose.

At this untimely juncture in global absurdity, President Obama need search no further to come up with a title for the final volume in his combined biographical and political philosophy trilogy -- which began with Dreams of My Father and segued into The Audacity of Hope -- for nothing would be more fitting than The Arrogance of Power. Such is the impact on the progressive community of the administration's proposal that Congress provide the Federal Bureau of Investigation with clear authority to obtain records related to the context of e-mails and other Internet-based communications without first obtaining a warrant from a judge.

According to the administration, the request is mere housekeeping to clean up a sloppily written law. Justice Department spokesman Dean Boyd said: "The statute as written causes confusion and the potential for unnecessary litigation. The clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993."

The administration is asking Congress to specifically include a provision in the 2011 intelligence authorization bill modifying the Electronic Communications Privacy Act
which prohibits companies that handle electronic communication from revealing customer information without a court warrant. These firms include Internet service providers and Web-based firms like Google.

The act provides exceptions for information relevant to national security investigations where speed can be essential. A "national security letter" may be issued by FBI agents requiring a firm to release records listing phone numbers called, although a warrant is still required to eavesdrop on the contents of calls.

Congress is being asked by the administration proposal to add an "electronic communications transactional records" category to classifications of information FBI agents can demand. E-mail addresses used in correspondence and Web pages visited would be included in such records. Elsewhere in the act, though not in that specific list, the FBI already has authority to obtain Internet records with a national security letter.

The Justice Department's Office of Legal Council said in a 2008 memorandum that the specific list of categories of information the FBI can demand is "exhaustive." But a footnote said "categories of information parallel to subscriber information and toll bill records for recording telephone services" are also covered.

Both e-mail addresses to which people send messages and the Web pages they visit, the FBI contends,are the functional equivalent of phone numbers they call.

The New York Times reported that Justice Department officials familiar with the matter, speaking anonymously because of the sensitivity of the issue, say most companies agree with that interpretation and have routinely released such records when they are requested.

One company, which officials declined to identify, has told the Justice Department
it feared a lawsuit for illegally turning over private information.

Despite the Obama administration's insistence that it is merely requesting a technical change, its proposal extends far beyond that. National security letters constituted the authority the Bush administration used after the September 11, 2001 attacks to demand that libraries turn over the names of books that people had checked out. The FBI used these letters literally hundreds of thousands of times to demand records of phone calls and other communications. The Pentagon used the letters to obtain records from banks and consumer credit agencies. Internal investigations uncovered widespread misuse of the authority and little oversight into how it was used.

During the 2008 national campaign, President Obama singled out these abuses as something he was running against and would change. "There is no reason we cannot fight terrorism while maintaining our civil liberties," according to one of his campaign position papers. "As president, Barack Obama would revisit the Patriot Act to ensure that there is real and robust oversight of tools like National Security Letters, sneak-and-peek searches and the use of the material witness provision."

The "real and robust oversight" promise of the Obama campaign remains conspicuously absent. In fact, the Obama administration succeeded in obtaining renewal of crucial provisions of the Patriot Act for another year without changing as much as a single word.

Just as the American public was led to believe the administration would be bringing our troops back from Southwest Asia a year and a half after Obama took the oath of office, rather than re-deployment and actual increases in the amount of U.S. troops in Afghanistan, it would be reasonable to expect that the president might be taking aggressive steps against clearly abused powers such as national security letters. Rather than taking action to end the latter abuses, just as the administration doubled down on troop commitment to Afghanistan, it now appears to be doubling down on prospective further civil rights violations by seeking changes to the law that would allow enormous numbers of new electronic communications to be examined without judicial oversight.

Senator Patrick J. Leahy, D-Vermont, chairman of the Senate Judiciary Committee, says the Obama administration's proposal raises "serious privacy and civil rights concerns." Senator Leahy has that exactly right. Congress should not only respectfully decline the administration's outrageous proposal for more sneak-and-peek authority, it should be continually investigating privacy violations incurred through the issuance of national security letters which are a license to avoid the judicial system and snoop on anyone the F.B.I. may wish for any reason it may dream up. An administration committed to ending such abuses hardly needs to be widening the potential for them.