by Julian Sanchez
This article appeared in the American Prospect on March 3, 2010.
Here's how it was supposed to be. Under his administration, candidate Barack Obama explained in 2007, America would abandon the "false choice between the liberties we cherish and the security we provide." There would be "no more National Security Letters to spy on citizens who are not suspected of a crime" because "that is not who we are, and it is not what is necessary to defeat the terrorists." Even after his disappointing vote for the execrable FISA Amendments Act of 2008, which expanded government surveillance power while retroactively immunizing telecoms for their role in George W. Bush's warrantless wiretapping, civil libertarians held out hope that the erstwhile professor of constitutional law would begin to restore some of the checks on government surveillance power that had been demolished in the panicked aftermath of the September 11 attacks.
The serial betrayal of that hope reached its culmination last week, when a Democratic-controlled Congress quietly voted to reauthorize three controversial provisions of the USA Patriot Act without implementing a single one of the additional safeguards that had been under consideration -- among them, more stringent limits on the national security letters (NSLs) Obama had once decried. Worse yet, the vote came on the heels of the revelation, in a blistering inspector general's report, that Obama's Office of Legal Counsel (OLC) had issued a secret opinion, once again granting retroactive immunity for systematic lawbreaking -- and opening the door for the FBI to ignore even the current feeble limits on its power to vacuum up sensitive telecommunications records.
NSLs have been around for decades, but their scope was radically expanded by the Patriot Act and subsequent intelligence bills. They allow investigators to obtain a wide array of financial records and telecommunications transaction data without a court order -- revealing the phone numbers, e-mail accounts, and Web addresses with which their targets have been in contact.
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