Dennis McDonough, a foreign policy adviser to the Obama campaign, said in a conference call this morning that legislation expanding presidential power to conduct warrantless surveillance of Americans' communications is acceptable to Senator Obama because the United States Inspector General will ensure accountability.
In other words, the Obama campaign's position is now that the duty and power to protect the Constitution from all enemies, foreign and domestic, now resides primarily not with the President, not with the Congress or the Courts, but with a bureaucrat created by administrative law whose job is to conduct internal investigations of government agencies.
That's a dramatic statement, but not an overstatement. The legislation that the House passed last week and the Senate will be taking up later this week not only immunizes giant telecommunications companies like AT&T from liability for violating their customers' rights under prior law -- immunity that Obama promised last year would warrant filibustering the bill, but which he now says he'll only "work" to remove -- but also greatly expands the president's ability to order eavesdrops on routine telecommunications by ordinary Americans who aren't even suspected of being associated with terrorists, which many observers see as a violation of the Fourth Amendment.
Even Obama's own supporters see the bill as an unconstitutional power grab. In an Obama campaign conference call on June 6, a prominent Obama supporter -- former senator Bob Graham (D-FL), who used to chair of the Senate Intelligence Committee and is an authority on George Bush's efforts to expand spy powers on U.S. citizens -- criticized McCain for supporting the same legislation that Obama now also supports. In that earlier call, Graham explained why current law is more than adequate to fight terrorism, and called the new legislation a "smokescreen" and "subterfuge" to secretly resurrect a large scale "data mining" operation involving millions of Americans' conversations, like the "Total Information Awareness" program that was rejected in 2003 for being too intrusive:
(A fuller post on that earlier exchange, including more analysis and audio of the question Graham was responding to, can be found here.)
The Obama campaign arranged today's press conference call in order to criticize a remark made by McCain adviser Charlie Black that another terrorist attack on U.S. soil would be a "big advantage" to the McCain campaign. McDonough and 9/11 Commission member Richard Ben-Veniste were on the call.
During the Q&A with reporters after their presentation, I pointed out that Obama's support for the new wiretapping legislation seemed inconsistent with his principled statements -- following from the Supreme Court's recent ruling upholding Guantanamo prisoners' right to habeas corpus -- that Constitutional rights are not inconsistent with safety, even in wartime, and asked whether his shift reflected an effort to immunize himself against Republican claims that he's weak on national security, especially if there were to be another terrorist attack as Black had mentioned. I described Obama's previous position as "principled" and his current position as "triangulated."
In response, McDonough didn't disagree with my characterization of Obama's position as shifting or "triangulated." He didn't disagree with my suggestion that the new legislation infringed on "the sanctity of Constitutional rights." He didn't mention any safeguards involving the balance of powers, as the Framers envisioned. Instead, he explained that the new legislation provided for a "wide ranging Inspector General report that will lead to some accountability" and said "that's why Barack Obama is comfortable supporting" the bill.
To my ear as a lawyer and an admittedly besotted lover of the Constitution, this is a damnably weak defense of an unconstitutional law that plays on people's fears and will allow presidents -- Republican or Democratic -- almost unbridled power to violate the privacy of millions of Americans' private conversations, without warrants, without any suspicion that those Americans are involved with terrorism, in the name of "keeping them safe." It's especially weak coming from an adviser to a prospective president who has taught Constitutional Law to generations of lawyers and who professes great respect for Constitutional liberties, even in wartime.
The audio of my question and McDonough's answer is here; listen for yourself:
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