The court was divided 4-4.
In President Obama's big speech on NSA spying, he made himself the hero of the story -- and Edward Snowden the villain.
It's not comforting to all U.S. citizens and everyone living abroad, including foreign leaders, that Obama said: "I maintained a healthy skepticism toward our surveillance programs after I became president." Big deal! You kept them up, and may even have expanded them, allowing the government to track all our phone calls and our every key stroke, without any predicate of wrongdoing on our parts.
It's not comforting to any of us that he boasted that "improved rules were proposed by the government and approved by the Foreign Intelligence Surveillance Court." That court is a fraud. In 2012, the Executive Branch made 1,789 requests to the FISA for permission to conduct electronic surveillance. The court approved 1,788 of them!
It's not comforting to any of us that he boasted that "we've sought to keep Congress continually updated on these activities."
First of all, there's a lot of fudge room in "sought to."
Secondly, how many members of Congress were actually informed of all these activities? Sen. Ron Wyden of Oregon was repeatedly stymied by the Obama Administration when he tried to find out about these programs. And Director of National Intelligence James Clapper lied to Congress about it, saying last March that it was not "wittingly" collecting information on millions of Americans. Clapper later said that his comment was "the least untruthful thing" he could have said. This isn't informing Congress; this is criminally misinforming Congress.
And thirdly, why didn't Obama allow members of Congress to inform us, the citizens? Don't we have a right to know when the Executive Branch is crushing our Fourth Amendment rights "to be secure" in our "persons, houses, papers, and effects"?
It's also not comforting to any of us that last year Obama said in a speech that "we needed a more robust public discussion about the balance between security and liberty," since his Administration had been gagging members of Congress for years from telling us what they know about some of these programs.
The whole first half of Obama's speech was designed to show how he's been the guardian of our rights, when he's been violating them.
He did acknowledge, however, that critics have been right to point out that the NSA's mass gathering of our phone records "has never been subject to vigorous public debate."
Which brings us to whistleblower Edward Snowden. The undeniable fact of the matter is that we wouldn't be having this "vigorous public debate" right now, and Obama would not have given this speech, were it not for Snowden (and for reporter Glenn Greenwald).
Obama mentioned Snowden twice by name. "Given the fact of an open investigation, I'm not going to dwell on Mr. Snowden's actions or his motivations." But this pretention of piety didn't stop Obama in the next breadth from saying that "the sensational way in which these disclosures have come out" has revealed "methods to our adversaries that could impact our operations in ways that we might not fully understand for years to come." So Obama said he wouldn't prejudice the case against Snowden, and then he goes ahead and prejudices it.
Yes, it was nice to hear the President admit that after 9/11 "the risk of government overreach" went up, and that "the possibility that we lose some of our ore liberties in pursuit of security also became more pronounced."
And yes, it was nice that he made some modest changes in the oversight of the NSA.
"The president's speech outlined several developments which we welcome," said Anthony Romero, executive director of the ACLU. "Increased transparency for the Foreign Intelligence Surveillance Court, improved checks and balances at the FISA court through the creation of a panel of advocates, and increased privacy protections for non-U.S. citizens abroad -- the first such assertion by a U.S. president -- are all necessary and welcome reforms."
But Obama did not tell the NSA to stop scooping up all our phone calls. "The president's decision not to end bulk collection and retention of all Americans' data remains highly troubling," Romero said. "The president outlined a process to study the issue further and appears open to alternatives. But the president should end -- not mend -- the government's collection and retention of all law-abiding Americans' data. When the government collects and stores every American's phone call data, it is engaging in a textbook example of an 'unreasonable search' that violates the Constitution."
No amount of self-aggrandizing rhetoric, and no amount of tinkering on the edges, will alter that fact.
Photo: Flickr user Joe Crimmings, creative commons licensed.