Attorney General designate Eric Holder raised eyebrows and a few howls when he told Utah Senator Orrin Hatch that he would not prosecute any Bush officials for authorizing dubious wiretapping. Holder has little choice in the matter. That would bog the Obama administration down in an all consuming ultimately no win factional fight with Congressional Republicans, the courts -- especially the Supreme Court which upheld Bush provisions authorizing torture, and legions of holdover Bush Justice Department and civil rights division-appointed attorneys. There were few squeals from Congressional leaders at Bush's borderline legal and constitutionally dubious executive orders that permitted the long checklist of civil liberties abuses, warrantless wiretaps of U.S. citizens, being one of the more glaring.
That's only part of the reason why Holder is seemingly willing to let bygones be bygones when it comes to prosecuting Bush's crew members for the blatant civil liberties abuses. The other part is that it would pry open again the Democrats dirty but hardly unknown secret. When word leaked out about the scope and complexity of the warrantless wiretap program before the 2006 midterm elections Congressional Democrats not only did nothing about it, they aided and abetted the Bush administration in the illegal spying.
The Democratic-controlled Congress passed the "Protect America Act." This put the Congressional stamp of approval on what Bush did and actually expanded his powers to snoop. The targets weren't just foreign terror suspects and known operatives but American citizens. Democrats knew this and approved it by inserting in the law open-ended wording that permitted legalized spying on anyone outside the U.S. who intelligence agencies "reasonably believed" to possess foreign intelligence information The law deliberately made no distinction about exactly who the target could be. Then there was the infamous clause that granted immunity from lawsuits to communications service providers that made Bush snooping possible. With no fear or threat of legal action against the companies, the wraps were legally off on who could be snooped on. As an added sweetener, the law also gave Bush emergency power to tap for up to a week anyone deemed a terror threat; all without a warrant. That didn't end matters.
In January 2008 then Democratic presidential contenders Barack Obama and Hillary Clinton flatly said that who were so troubled by the Foreign Services Intelligence Act which essentially slapped a cloak of immunity over the telecommunications companies that were the key to running the warrantless tapping. They said the Act was far too weak in providing protections against the rampant abuses in domestic intelligence gathering operations. The issue again was the virtual nonexistent controls on warrantless wiretapping and the provision that granted immunity to telecommunications companies who engaged in the reckless and borderline lawless surveillance of any and everyone tagged as a potential terrorist threat.
Clinton and Obama swore that they would not support the bill with the dangerous lack of civil liberties safeguards. Both initially voted no on cloture. Clinton kept her word and voted no in the vote on the final passage of the bill. Most of the top Democrats with few exceptions caved and backed it. Obama was one of them.
Holder told Hatch in his confirmation hearing that he didn't want to criminalize policy differences that may exist between the Bush administration and the Obama administration. He's right especially when more than a few top Democrats were knee deep in assuring that those differences were not differences at all.
Earl Ofari Hutchinson is an author and political analyst. His forthcoming book is How Obama Won (Middle Passage Press, January 2009).