Many civil libertarians refused to vote for President Barack Obama given his dismal record in the expansion of the security state, surveillance law, and assertions of unchecked executive power. The Administration went into radio silence on such issues during the campaign in an effort to win back liberals (as they did on medical marijuana) only to announce after the election that they would resume the same policies. The Democratic leadership has shown the same duplicity on civil liberties for years — including hiding knowledge of the Bush torture program and surveillance programs as well as blocking any meaningful investigations into those alleged crimes. Now, some Democrats have reportedly put that hypocrisy on public display again. Senator Patrick Leahy introduced the bill which, as originally written, required warrants for the reading of emails and was heralded by Democrats during the campaign as their showing of fealty to privacy and civil liberties. The Justice Department then took the bill and flipped it to serve as a sweeping denial of privacy rights . . . and some Senators are pushing on passage now that the election is over. The bill includes warrantless access to university email systems.
The re-written bill now authorizes warrantless access to Americans’ e-mail for over 22 federal agencies with only a subpoena and no probable cause. State and local agencies will have access to email system, including university emails. Internet providers will have to give notice if they are thinking of informing customers of access given to such agencies. Such notification can be postponed by up to 360 days. While not speaking for his Democratic colleagues, Leahy says that he does not support some of the exceptions. Leahy was once an ally for civil libertarians but is now viewed with great suspicion given his authorship of the 1994 Communications Assistance for Law Enforcement Act as well as the Protect IP Act. An article in The New Republic concluded Leahy’s work on the Patriot Act “appears to have made the bill less protective of civil liberties.” He also inserted controversial portions of the Patriot Act. Leahy however insists that he will oppose rollbacks. Yet, the Justice Department has objected to protections in the bill according to reports and some Senators are pushing for the restrictive version of the bill. Leahy’s staff says that he will push a draft closer to the original in committee. [Update: CNET is standing by its story
and says that Leahy only backdown after criticism following its story and that Leahy is abandoning amendments of his own making].
There is no denial of the opposition to the privacy protections by the Administration.
However, the Obama Administration is quoted as objecting that privacy protections would have an “adverse impact” on national security investigations. Democratic members doing the bidding of the Administration will find likely allies in the GOP, including Senator Chuck Grassley who has warned about the dangers of too much privacy.
The control of the security establishment over both White House and Congress appears now completely unchecked and unabashed. After securing reelection, President Obama wasted no time in returning to his prior record of disregarding privacy and civil liberties concerns. Once again, both the media and liberals are muted in any response when the same re-writing of the bill would have produced outcries under the Bush Administration. Of course, Obama can certainly point out that liberals should have had no illusions. On torture, military tribunals, surveillance, undeclared wars, and other issues, Obama made himself painfully clear. His campaign was one of personality over principle and only the personality remains.
[UPDATE: after the CNET story gained national attention, Leahy's people went into full action in denying that Leahy supports warrantless access to email communications. However, there is still no denial of the quoted Administration officials opposing the privacy protections. Moreover, there is confirmation that a number of versions -- including some with these exceptions to the warrant requirement -- are being circulated. The bill can be changed in Committee or on the floor. Likewise, if the civil liberties community rallies to oppose warrantless searches, the Administration could seek to kill the bill or gut the provision to leave the status quo.]