Wednesday, November 25, 2009 -- A large group of Obama supporters and civil libertarians yesterday posted a national open letter to the President and companion petition asking for presidential action to press Congress to revise the Patriot Act and the Foreign Intelligence Surveillance Act (FISA). Anguish in the group grew palpably as the final draft went live on the Bill of Rights Defense Committee (BORDC) website and Change.org. By the end of the day, thousands of tweets, blogs and emails were, as we now say, going viral.
The open letter and petition, in preparation for months by Obama activists, civil libertarians, and privacy advocates of all political persuasions, call on President Obama to join many Democratic leaders in Congress to:
•Reign-in the government's secret powers to spy on innocent Americans,
•Stop spying without court warrants,
•Protect and then destroy the massive amounts of data being collected on innocent Americans, and
•Restore judicial and congressional oversight befitting at least minimal Constitutional guarantees.
The Patriot Act, enacted in the dark days after 9/11, and certain FISA amendments, do provide vital improvements in the nation's ability to detect, track, and apprehend terrorists. But they also contain provisions that violate the most basic Constitutional protections of liberty, such as the 4th Amendment's requirement that search warrants be presented to a judge and authorized before the search is conducted. In fact, many such Constitutional guarantees effectively no longer exist. Security seems to have replaced freedom in America as a founding principal.
The current outrage isn't new. In July 2008, Congress deliberated Bush-era revisions of the FISA law that give retroactive immunity to telecomunication companies that enabled collection of telephone and internet data on millions of Americans. Obama - unlike nearly all progressive senators - voted in favor of the Bush-pushed law.
Within days, over 24,000 of his most energetic supporters formed the largest group on the Obama campaign website. They called it Get FISA Right. They issued an open letter in protest. Obama responded with campaign smooth-talk and promises of transparent review of the problems once elected, and the campaign tumult passed.
People in the Obama campaign's Get FISA Right group contributed over $730,000 to Obama's campaign, a few dollars at a time.
"We're Obama supporters," said strategist Jon Pincus, leading organizer of the Get FISA Right movement and CTO of Seattle area Qworky, a technology startup developing online tools for effective meetings. "We truly believed the Bush era of secrecy and an imperial presidency was over. Instead, as concerns the Patriot Act and FISA, we find little difference between Bush and Obama in both their positions and their tactics. It's gut wrenching. This is not the change I thought I was voting for."
Even a light brush-up on history shows that running a secret government is easy, and does indeed provide enhanced security. The question is: at what cost? Overbearing governments always raise fears and then cry that their measures are necessary for security. Apparently, three Bush Attorneys General and the current Obama Attorney General do not believe that even the special judges in the secret FISA court can be trusted to see the facts needed for warrants in domestic terrorist investigations. Apparently, none of our federal judges are trustworthy enough to try cases involving ultra-secret programs - and our government sees no need to create special secure courts for the purpose. Hence, it is the investigating agents, not any judge, who authorize searches. Even the no-judge authorizations, called National Security Letters (NSLs), are themselves so secret that if you discover that you've been searched, and you tell anyone - even your spouse - you can go to prison.
The Patriot Act allows FBI agents to issue NSLs without a judge. Between 2003 and 2005 the FBI issued more than 143,000 NSLs, only one of which led to a conviction in a terrorism case. Furthermore, an innocent person whose life has been ruined by unconstitutional government action is powerless to be heard in court.
In her speech to Georgetown Law Center on March 9, 2006, retired supreme court justice Sandra Day O'Connor, as reported by Nina Totenberg of NPR, warned that "we must be ever-vigilant against those who would strong-arm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings."
Recently, Justice Department negotiators pressed Congress to preserve Bush-era violations of the Constitution. Afterward, Senator Russ Feingold, Chairman of the Senate Judiciary Subcommittee on the Constitution, said, "what was most upsetting was the apparent willingness of too many members to defer completely to behind the scenes complaints from the FBI and the Justice Department."
"We're frankly deeply saddened that our President, the Constitutional scholar, would secretly advocate for renewal of the most invasive civil liberties violations," said Amy Ringenbach, a coordinator for MoveOn in Philadelphia. "Further, if he has some explanation, he's refusing to say what it is."
Now the Get FISA Right movement has spread far beyond Obama's campaign supporters. In Congress, the rush is on ... the most draconian parts of both the Patriot Act and the FISA Amendments automatically expire December 31, 2009. Even with health care looming, something will be done first with these laws.
Get FISA Right has gone public now, to help assure that what gets done gets done ... right.
At the top of the Get FISA Right page on the petition site at Change.org, Obama is quoted as having said, "We have to make clear the lines that cannot be crossed." The authors of the Open Letter and Petition, in considerable distress, still hope he honors his own words.