Obama Yields To “Copyright Hawks” and Lobbyists To Seek Criminalization of Copyright Violations

The Obama Administration has again yielded to a powerful lobby over objections from citizen groups. We have been following the increasing draconian and excessive copyright claims made in the United States. Now, President Obama wants to make it a crime — a change long sought by the Chamber of Commerce and so-called “copyright hawks.”

The changes to the U.S. copyright law would make it a federal crime to engage in “illegal streaming” of audio or video. It is being pushed by
Victoria Espinel, the first “Intellectual Property Enforcement Coordinator.” The problem with this title is it does not indicate any corresponding concern or duty to average citizens who are being abused by law firms and industries in copyright actions.

The Obama administration wants to put copyright violations on the same footing as terrorism and other serious crimes to allow it to use such things as wiretaps to increase the investigation of citizens in this area. As noted in the article below, “[t]he term “fair use” does not appear anywhere in the report.”

Here is the White House proposal: ip_white_paper

The total absence of consideration of fair use and how this could affect ordinary citizens and the Internet is alarming. At a minimum, one would expect some discussion of the issue in seeking expanded criminalization.
Source: CNET

58 thoughts on “Obama Yields To “Copyright Hawks” and Lobbyists To Seek Criminalization of Copyright Violations

  1. The Obama administration wants to put copyright violations on the same footing at terrorism and other serious crimes to allow it to use such things as wiretaps to increase the investigation of citizens in this area.


    If this were purely about intellectual property theft we would be at war with China. This is about regulation of the Internet and ever-broadening citizen surveillance.

    Assange spoke about this trend by government earlier this week when he said “…[the Internet] is a technology that can be used to set up a totalitarian spying regime, the likes of which we have never seen.”

  2. Bull Shit… Or is that more likely and aptly called Bush Shit…

    Here is another one…..

    Chrysler sues over use of ad tag line

    Chrysler, which used an artful Super Bowl ad to portray itself as the gritty urban underdog of automaking, is now playing Goliath against two local entrepreneurs who see themselves as the up-by-the-bootstraps David of Motor City pride.

    The Auburn Hills automaker sued the owners of Pure Detroit on Tuesday, alleging they violated the automaker’s trademarked “Imported from Detroit” tagline by using it on a variety of apparel sold through their shops.

    Makes ones heart go bop de bop….

  3. Good. Modern media (movies, music, television) is nothing but propaganda in support of both the ruling order and an unsustainable, immoral and inhuman way of life. Anything that limits access to this memetic onslaught, makes it more expensive or harder to obtain, even a little bit, is very welcome news.

  4. Defamation is a serious problem for many people. There are criminal defamation laws in many states but when I tried to report it, they wouldn’t even talk to me.

  5. Fruitless and pointless. The people they claim to be after have already changed their skins three or four moves ago. As usual, only ordinary citizens end up being the actual targets of this misguided power-play.

    Despite the claims by Assange of a global spy net in the making, individual users still retain the ability to encrypt their conversations. It’s not easy for the average user, however, and it does require heightened due diligence. But it can be done.

    The Internet is still much larger than any one country’s ability to control it, and the people who actually run it (hint: not politicians, lawyers, or LE) will assure it stays open and free. With this generation of smart phones, you can create whole wireless networks owned by no one. This is one way service is being piped into places where the govt tried and failed to limit it. China’s censorship is a joke. If you want it, you can find it.

    The response to this intrusion will be to place the issue further out of reach of governments, not the reverse. The fall-out will be the wrong people being charged for clicking a mouse, with no ability for LE to do anything whatsoever about the source of it.

    It’s just bits, people. Come back off the ledge. Two minutes after you release your bits to the world, they are Old News, though the bits stubbornly remain. They are free by nature, and no amount of silly made-up laws is going to change that.

  6. I will agree to the criminalization of copyright violations when every Bankster who sucked us into this deep recession gets put in jail and every government official who authorized torture or is still authorizing torture, is prosecuted and convicted. When those devils are in jail, then they can have the illegal streamers.

  7. rafflaw, when 400 control 50% of the wealth in an age when the detailed comings and goings of people can be obtained by those wishing to know it, there exists a critical point in the system where these folks are going to become targets.

    I recommend taking a page from Operation Rescue and occupy these people’s lives 24/7. Ditto torturers and those lawyers who think simply moving words around on a page somehow means Congress declared war. OR is peaceful, if annoying. My sense is x100 the people would turn out.

    And they will. Our coal mine’s canary is the price of gas. When it reaches $10, the egg-timer goes ding! and let us hope those at the feet of the driveways of thieves, murderers, and liars remain peaceful.

    Because they will be coming.

  8. Bob,Esq.
    1, March 17, 2011 at 1:22 pm
    4th Amendment?

    What’s that?


    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (applies to governmental searches and seizures)

    Ok, I know you were being rhetorical but, if you have a few minutes, could you explain a little more in depth where you stand on this matter? I ask because I value your opinion and your insight.

  9. Blouise,

    What is there to say? To categorize copyright infringement as a serious crime for wiretapping purposes; while the administration defends the wholesale use of warrantless wiretapping and electronic surveillance?

    It’s as if the rules no longer exist anymore.

    The fatal precision of this attack on the 4th amendment is in no small part due to the liberals apologizing for the attacker in chief. The GOP on the whole doesn’t care about civil liberties; witness the rhetoric regarding ‘card carrying members of the ACLU.’

    So what we have are a bunch of liberal lemmings following Obama over the cliff. Why? Because of those rose colored glasses that refuse to see their alleged redeemer in any negative light.

  10. James,
    Maybe we should take a page out of the Westboro book and protest at every bankster and every government officials home to remind them that they Had a base. James, I also think the egg timer has already gone off in Wisconsin and Ohio and Delaware and other places where the middle class is beginning to fight back. The scary thing about all of this is that they are doing it in the open. Obama is caving to the right on this issue(among many others) and he isn’t being shy about it. Somehow, the base has to turn his attention to the rule of law. How to do it, is another question.

  11. Blouise,

    Did you ever see the film Crimson Tide?

    The part of the U.S. Constitution was played by Gene Hackman…

    Capt. [Constitution]: Mr. Hunter, we have rules that are not open to interpretation, personal intuition, gut feelings, hairs on the back of your neck, little devils or angels sitting on your shoulder. We’re all very well aware of what our orders are and what those orders mean. They come down from our Commander in Chief. They contain no ambiguity.

    Hunter: Captain…

    Capt. [Constitution]: Mr. Hunter, I’ve made a decision. [It’s right there in the 4th Amendment]. I’m Captain of this boat. NOW SHUT THE FUCK UP!

  12. So this means what? DHS (DHS owns NSA) and ICE are already seizing and shutting down domains for alleged copyright infringement, prior to any court case or finding of guilt. So now they’re going after users, which means sites are going to be up while users are investigated and wiretapped? How will that work in practical terms? How do you know a BitTorrent user is streaming copyright media? You’re going to have to verify that aren’t you? How would that be done?

    Each seed (whole file) sent to a server is broken into very small pieces and each piece is assigned a unique cryptographic hash, an identifying number and that number is supposed to stay with the piece from the original breakdown to the final reassembly. The breakdown and assignment of the hash designators is done by the seeder, the person uploading the file.

    The availability of the file is then announced on sites that hosts these announcement files. Persons interested in sharing files via. the BitTorrent method retrieve the announcement and that file contains information including the cryptographic hash numbers. Once in possession of the hash table for a file, the peer wanting to download it uses specific software that searches the internet for the pieces. Some sites are set up pecifically to house BitTorrent pieces and those clearing-house sites are the sites DHS has been seizing. This is my miniscule bit of understanding and it may be wrong.

    If you were the original seeder, it would seem to me that you could, if you had the resources, follow your file pieces as they proliferated throughout the Net. Every time someone moved those files if you had the resources to sweep up and sort through every transmission made by a communication device, like say DHS through the NSA does, then you could follow your file pieces to the specific instrument and the person it was owned by. You could then leave the sites up, like those sticky hanging fly paper strips, and pick off the people doing the downloading which is not what is happening now; currently the sites that host the pieces are being seized and only site owners are being rounded up.

    Am I even in the ballpark with how BitTorrent works and how files might be tracked? I read about BitTorrent some time ago and rejected it as something I might want to get involved in- too complicated. Am I just paranoid or can/will basic undercover police work be employed in classic fashion to track down file sharers? Will the government, our taxpayer dollars, go to fund an army of workers that have as their job to go to BitTorrent sites with copyright material and become ‘seeders’. Their job being to construct or attract a swarm, track the members downloading the bait files using the power and majesty of all those NSA computers, then wiretap/bust their swarm members?

    I always figured that those NSA computers would be used for something just as petty and totalitarian as this. Can I start calling the people I used to argue about this kind of stuff with and tell them “I told you so” or am I being way too paranoid?

  13. Bob,Esq. and Raff-

    Don’t bother Our Beloved President with your petty concerns. Don’t you know that the NCAA Tournament is in progress?

  14. rafflaw said, ” Somehow, the base has to turn his attention to the rule of law. How to do it, is another question.”

    This has been the vexing question. Clearly, the ballot box is inoperative. O’ccomplice could have done much, much more and has not. Constitutional lawyer, my great aunt Bertha’s toenail! And whither the mannequin Holder?

    So, in addition to WI-style protests, and relentless personal hounding of key administration officials, bankers, and torturers, we must begin looking for a leader within, one who can take up the fractured threads of the middle and lower classes, including the tea people, and bind them together into a solid opposition, one which acknowledges that the very reason we are in this predicament is because we set aside the rule of law.

    Because I doubt Secret Service will allow us to employ the tried and trusted technique of shaking the living shit out of O’ccomplice by the neck and shoulders while asking, “what were you THINKING?!?” until he gets it.

    The country sorely needs him to get it, and I still hope he does.

  15. Lottakatz, “too paranoid?” One could get dizzy following that road over-much.

    It’s worth remembering that Internet file sharing technology is quite similar to the military in that what is visible to the public is at least quaint, if not obsolete. BitTorrent came about in response to earlier, less complex threats. The technologies underpinning file sharing at the largest scales have since moved on, or have morphed existing technologies beyond the reach of all but a dedicated few. What we see, e.g. torrent sites, is a distillation of this, processed many times over.

    Such as geeks at the NSA with nothing better to do. But think of the volume! It never ends, growing each day. Knowing how the govt actually operates, one has little faith they are doing anything other than running in circles and yelling “fire!”

    Because you and can still encrypt our personal conversations beyond reach, if we want to. And we can move our domains to friendly registrars that show private parts in response to U.S. subpoenas. And, for now, they cannot lock us up for this speech.

  16. YouTube (owned by Google- big money player) is violating copyright laws every second of every day but you don’t see DHS seizing their domain, and you won’t. We have read about 12 year olds being sued for a quarter mil by a recording industry label or movie company or RIAA, will we now read about kids being hit with felony charges?

    There is a two tier justice system in this country and this is IMO just a new tool in the arsenal for the government/corporate suppression of the peasantry. The proliferation of laws, the criminalization of every aspect of human interaction is simply to make us all felons-in-waiting.

    We’re seeing six year olds arrested at school not because there are felonious six year olds but because the nations children are being conditioned to fear authority and be subservient. Not only subservient to an actual law, but to any rule by any state sanctioned authority or institution. Not only the letter of the law or rule but any permutation of a rule no matter how ridiculous. It is training in the self anticipation that any act COULD BE unlawful and meant to have the individual self-limit their actions accordingly.

    This was the darker thread in Orwell’s book, the crushing of the human soul to the point where people thought of themselves as always on the verge of breaking the law because the law was so whimsical at any given time one may well be on the wrong side of it while doing nothing differently today than one did yesterday. That after a sufficient conditioning of the populous the citizens did the government’s job for them, the citizens modified and circumscribed their behavior to a point that the government didn’t have to actually watch them. It didn’t matter if the view-link was on or off, people behaved as if it always was on. One ceased to be a person and became, by their own actions, a specimen always being observed and found wanting.

    This wasn’t something the Republicans were clamoring for, this didn’t bubble up, like the fetid stink of swamp gas from the House, this is a gift from the President. I wonder if this was something discussed at the meeting between the President and the COC? Is the further strangle hold by big business on the Internet, with the government as their enforcer, part of the quid pro quo for business to (possibly, maybe, if they feel like it and it’s not too much trouble) trickle down a few jobs?

    I’ve had it. Screw this. Kucinich 2012- even if I have to write him in, weather he’s running or not. Wouldn’t be the first time, won’t be the last.

  17. James,
    I am guessing that you are right about the Secret Service!!
    I think the people in the street will be the best method, but I don’t know if it will be quick enough to recalibrate Mr.Obama.
    Be nice to the NCAA tourney! I am addicted to it as well.

  18. Critical to understanding this issue is that the studios and labels (and to some degree book publishing houses) represent a failing and dying business model – these sorts of laws and treaties are being written by their lobbyists in order to prop them up. They may die upright, but they will die, and be replaced by something else. (We don’t know what that “something else” will be, but we do know that they don’t have lobbyists…)

    The days of selling millions of physical records/cassettes/CDs are gone, and all the labels that are based on that model are in deep do do. It’s nice of the Administration to whore out the nation to serve their limited, short-term interests.

    Another huge problem is that there are a set of technological “locks” that are being put in place along with the criminal enforcement. The openness of our technological tools (computers and the internet) have created huge benefits for the world. Yes, you can use a computer and the internet to “steal” a movie or plan a terrorist attack, but you can also use them to find cures for diseases, without asking the permission of a pharmaceutical company. Imagine if pens and paper in the 18th century all checked in with the king to confirm that what they were being used to write was allowed…

  19. Bob, Esq.,

    Thank you, kind sir. I see that my original reaction was not far off base.

    Your observations are, sadly, right on target.

    Our leaders seem to be writhing on the floor in some sort of mindless fit as if the document which they swore to uphold and which contains the sanest guidance towards good government doesn’t even exist.

  20. James in LA, I’m not into BitTorrent and like that so I don’t have cause to get personally exercised about this latest bit of government muscle-flexing. I actually have downloaded various encryption software and have the links to a couple of secure routing services in my ‘favorites’ file but, just screw it.

    I’m a contrarian, if I want to post scatological insults about our corporate masters or the President or various politicians on sites that have a less courteous give and take, I do it. I could be traced to any particular comment in about 1/10th of a second by anyone with minimal skill at such things. My economic history is a virtual open book to anyone that my bank gives records to. It’s really kind of non-personal for me. My objections are primarily ideological.

    What I’m increasingly agitated about is the naked aggression the government has taken and is taking against we-of-the-have-not. The magnitude of disparity in justice and privilege and the way it’s reinforced and protected at every level of government and by all major parties is breathtaking. They don’t even have the good manners to hide it, we are not worth the time and effort it takes to conceal this vast corruption. I’m very angry at the insulting nature of the relationship.

    In that regard I do take it personally because it’s become abusive and as part of the class ‘citizen’, or peasant, or worker, or serf, whatever, I am the abused. I don’t take kindly to that.

  21. Lottakatz, 100% agreed on all fronts. And it cannot last. The system is not sustainable. Unless these people flee the planet and somehow manage to take their ill-gotten gain with them, it seems these folks have the furthest to fall. And they absolutely play with fire because the tables could very easily be turned on them.

    But it takes uniting. And we’ll have none of that in 2011, unless it’s the shared prospect of working until hauled away in a pine box. That happens to be my retirement plan at the moment. I was sucked dry by the depression just as I was getting back on my feet. None of the people I know personally have escaped serious financial harm. Three lost houses. Michigan Folk. And none are even close to “getting back on track.”

    What gives me hope are the people turning out in WI and other states, because you do not have to have voted to protest to effect change, and this is the fundamental lesson of democracy my conservative friends keep refusing to learn, and deliberately so.

    The power remains with the People.

  22. He likes to criminalize speech by Afghani women who oppose the war too! “For Immediate Release –

    The United States has denied a travel visa to Malalai Joya, an acclaimed women’s rights activist and former member of Afghanistan’s parliament. Ms. Joya, who was named one of TIME magazine’s 100 most influential people in the world in 2010, was set to begin a three-week US tour to promote an updated edition of her memoir, A Woman Among Warlords, published by Scribner, an imprint of Simon & Schuster.

    Joya’s publisher at Scribner, Alexis Gargagliano, said, “We had the privilege to publish Ms. Joya, and her earlier 2009 book tour met with wide acclaim. The right of authors to travel and promote their work is central to freedom of expression and the full exchange of ideas.” Joya’s memoir has been translated into over a dozen languages, and she has toured widely including Australia, the UK, Canada, Norway, Germany, Italy, Spain, Portugal, France, and the Netherlands in support of the book over the past two years.

    Colleagues of Ms. Joya’s report that when she presented herself as scheduled at the U.S. embassy, she was told she was being denied because she was “unemployed” and “lives underground.” Then 27, Joya was the youngest woman elected to Afghanistan’s parliament in 2005. Because of her harsh criticism of warlords and fundamentalists in Afghanistan, she has been the target of at least five assassination attempts. “The reason Joya lives underground is because she faces the constant threat of death for having had the courage to speak up for women’s rights – it’s obscene that the U.S. government would deny her entry,” said Sonali Kolhatkar of the Afghan Women’s Mission, a U.S. based organization that has hosted Joya for speaking tours in the past and is a sponsor of this year’s national tour.

    Joya has also become an internationally known critic of the US-NATO war in Afghanistan. Organizers argue that the denial of Joya’s visa appears to be a case of what the American Civil Liberties Union describes as “Ideological Exclusion,” which they say violates Americans’ First Amendment right to hear constitutionally protected speech by denying foreign scholars, artists, politicians and others entry to the United States.

    Events featuring Malalai Joya are planned, from March 20 until April 10, in New York, New Jersey, Washington DC, Maryland, Massachusetts, Vermont, New Hampshire, Pennsylvania, Illinois, Minnesota, Oregon, Washington and California. Organizers of her speaking tour are encouraging people to contact the Department of State to ask them to fulfill the promise from the Obama Administration of “promoting the global marketplace of ideas” and grant Joya’s visa immediately.” (see at Jeremy Scahill tweet)

  23. Jill – thank you for posting; I had not heard about the story.

    I agree with the ACLU statement that the government is practicing ideological exclusion in order to silence criticism. Hopefully this somehow brings even more attention to Joya’s message.

    From Noam Chomsky in the NYT in the article War, Peace and Obama’s Nobel:

    When Obama was awarded the 2009 Nobel Peace Prize, Noam Chomsky wrote in an article syndicated by the New York Times: “The Nobel Peace Prize committee might well have made truly worthy choices, prominent among them the remarkable Afghan activist Malalai Joya.”

  24. “If this were purely about intellectual property theft we would be at war with China. This is about regulation of the Internet and ever-broadening citizen surveillance.”

    What would it be like if we really did go to war over copyright? War with China.

  25. Jill,
    thanks for the story on Joya. I also was not aware of it. I tend to listen whenthe ACLU speaks. This is a Bush-type manuever to block someone who wants to tell the truth of the situation in Afghanistan. I thought we believed in free speech in this country? I guess I am wrong…again.

  26. I have to disagree with anyone who says that this has any meaning other than trying to keep an obsolete business model making money by force of law. We’re talking about the same business interests that also tried to outlaw home recordable . The two key differences are that this time they’re backed into a corner, and have much more clout with those who make the laws.

    Never attribute to evil what you can attribute to stupidity.

  27. Dang it, forget about html tagging.

    “We’re talking about the same business interests that also tried to outlaw home recordable {insert media of choice here}”

  28. “they’ll take my mp3 player when they pry it from my cold dead hands” said pete while holding player above head in his best charlton heston voice.

  29. so we have an attempt to protect private property being used for supposedly nefarious purposes all the while being lambasted for protecting private property.

    And one wonders why you even bother? What do you think happens in a country which does not protect or respect property rights?

  30. Jill, Thanks for the link. Srsly, it’s like year 10 of the Bush administration. The sockpuppet is no longer a brain-damaged fool but the game plan seems unchanged.
    Bah, Humbug!

  31. Does anyone know if the Nobel Committee can get their money back? To use an old southern country boy expression, that is what they get for buying a pig in a poke.

  32. You all seriously thought Obama was going to be any different than he is? I would have thought it would have been obvious to all but the most stupid or the most ideological.

    When he told Joe the Plumber he wanted to spread the wealth around he meant he didn’t respect private property nor property rights. If those rights aren’t respected then individual rights will not be respected.

    What do you expect? His actions follow logically from his views, which are hard left. I think it obvious to anyone without ideological blinders, the left in this country has no respect for individual rights (left includes liberal republicans like Bush, Boehner and other republicans of their ilk). In other words all who are not classical liberals.

    Government has the power to wire tap, private companies do not. Socialist/fascist/communist, it makes no difference, they all deprive individuals of their rights at some point.

    Obama is a joke/mistake who is a fiction created by the left stream media and their willing flunkies in all walks of life. The unfortunate part is that the rest of us will be paying the price for years to come.

    A big thanks to all the ideologues on both sides of the political spectrum who made his presidency possible. If you right wingers hadn’t put Bush in office, we would never have had Obama. Thanks to both libs and cons.

  33. @Jonathan —

    I appreciate your effort on keeping your readers informed.

    But I would MUCH more appreciate it if when reporting issues like this that you include:

    * Government Officials Contact information
    * phone number
    * name
    * email addresses
    * websites
    * Reference numbers / Reference Titles – so your readers know how to properly refer to the issue.

    Because it doesn’t matter how upset I get about an issue, I don’t have any way to act on it. If you would kindly include this information in future posts, then if I get upset I can call and voice my objection.

    Right now I just get frustrated and upset. Please make it possible for your readers to ACT.

    I realize that you are not trying to be an advocacy group. I am merely asking that you complete your posts with the information you already have that your readers need.

    For example, if I want to call to complain about this issue I would first have to search for the white house phone number.

    Then my call would go something like this:

    White House Operator: “Hello this is the White House”
    Me: “I am calling to complain about that thing that Victoria Espinel is pushing that criminalizes copyright violations”
    WHO: “could you be more specific?”
    Me: “Well, you know that paper published some time this year, by the copyright hawks, that the Chamber of Commerce likes.”
    WHO: “uhh o.k.”
    Me: “How about just telling Obama to stop listen to the Chamber of Commerce and the RIAA?”
    WHO: “Thankyouverymuchgoodbyesir” (click)
    White House Operator 2: “Another one for the confused bin?”
    WHO: “Yep. Want to go to lunch now?”

  34. Pat,

    Alternately, you could use the anger and frustration as motivation to do a simple google search (or in this case read the .pdf linked to in JT’s post). I mean, chances are you probably put as much effort into crafting that script as it would take you to find the info you’re looking for.

  35. What Bob said.

    And in a shocking rarity, what Tootles said as well.

    Fascism on the move!

    Seriously, Obama administration, you bought off greed whores have a lot more serious issues on your plate than this nonsense. Like, oh, I don’t know, ending the torture of foreign nationals and American citizens like Bradly Manning, restoring the rule of law, and cleaning up America’s image in the foreign policy arena by starting to honor our treaties again. You venal idiots.

    Especially since “piracy” has been shown to increase both book (http://www.techradar.com/news/internet/paulo-coehlo-piracy-boosts-book-sales-441677) and film sales (http://animeshinbun.com/news/692978/japan-piracy-increases-anime-sales ; notably this story is based upon a study by Japan’s Research Institute of Economy, Trade and Industry (RIETI), a government-affiliated economics think-tank).

  36. Bob,

    Will do. I’m trying to play as much catch up as I can until the irresistible urge to sleep is upon me again.

  37. Buddha,

    I make no warranties of fitness for a particular purpose per the email.

    That is to say it may make you sick again.

    And now the last track from Physical Graffiti is running through my head…

  38. Pat,
    I think it is your job to find out the information that You want! Holy crap!
    Joe the Plumber??? You mean the guy who was “pretending” to be a plumber?
    I hope you are over the hump!

  39. Bob,

    You were correct. “Sick Again” indeed. That e-mail is making me quite nauseous. Hypocritical lies about respecting the rule of law and civil and human rights from a man who claimed he has the right to unilaterally and without judicial review execute American citizens without due process of any sort makes me taste vomit at the back of my throat.

  40. Rafflaw,

    I’m just going to quote one paranthetical statement, and let you decide how seriously Maury should be taken “(left includes liberal republicans like Bush, Boehner and other republicans of their ilk)”

  41. Bob,

    I’m all for it in this instance, but since it was your find, I submit that the honor of sharing is all yours.

  42. Bob,

    Speaking for myself. I’m judging a home-brew competition tomorrow. Chances are at least one of the beers is going to have an infection of some sort, so I’ll just wait ’till then.

  43. Barack Obama’s Q&A

    By Charlie Savage

    Globe Staff / December 20, 2007

    1. Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?

    The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.

    2. In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress? (Specifically, what about the strategic bombing of suspected nuclear sites — a situation that does not involve stopping an IMMINENT threat?)

    The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

    As Commander-in-Chief, the President does have a duty to protect and defend the United States. In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.
    As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

    3. Does the Constitution empower the president to disregard a congressional statute limiting the deployment of troops — either by capping the number of troops that may be deployed to a particular country or by setting minimum home-stays between deployments? In other words, is that level of deployment management beyond the constitutional power of Congress to regulate?

    No, the President does not have that power. To date, several Congresses have imposed limitations on the number of US troops deployed in a given situation. As President, I will not assert a constitutional authority to deploy troops in a manner contrary to an express limit imposed by Congress and adopted into law.

    4. Under what circumstances, if any, would you sign a bill into law but also issue a signing statement reserving a constitutional right to bypass the law?

    Signing statements have been used by presidents of both parties, dating back to Andrew Jackson. While it is legitimate for a president to issue a signing statement to clarify his understanding of ambiguous provisions of statutes and to explain his view of how he intends to faithfully execute the law, it is a clear abuse of power to use such statements as a license to evade laws that the president does not like or as an end-run around provisions designed to foster accountability.

    I will not use signing statements to nullify or undermine congressional instructions as enacted into law. The problem with this administration is that it has attached signing statements to legislation in an effort to change the meaning of the legislation, to avoid enforcing certain provisions of the legislation that the President does not like, and to raise implausible or dubious constitutional objections to the legislation. The fact that President Bush has issued signing statements to challenge over 1100 laws – more than any president in history – is a clear abuse of this prerogative. No one doubts that it is appropriate to use signing statements to protect a president’s constitutional prerogatives; unfortunately, the Bush Administration has gone much further than that.

    5. Does the Constitution permit a president to detain US citizens without charges as unlawful enemy combatants?

    No. I reject the Bush Administration’s claim that the President has plenary authority under the Constitution to detain U.S. citizens without charges as unlawful enemy combatants.

    6. Does executive privilege cover testimony or documents about decision-making within the executive branch not involving confidential advice communicated to the president himself?

    With respect to the “core” of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the President and the White House.

    7. If Congress defines a specific interrogation technique as prohibited under all circumstances, does the president’s authority as commander in chief ever permit him to instruct his subordinates to employ that technique despite the statute?

    No. The President is not above the law, and the Commander-in-Chief power does not entitle him to use techniques that Congress has specifically banned as torture. We must send a message to the world that America is a nation of laws, and a nation that stands against torture. As President I will abide by statutory prohibitions, and have the Army Field Manual govern interrogation techniques for all United States Government personnel and contractors.

    8. Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the US Senate has ratified?

    It is illegal and unwise for the President to disregard international human rights treaties that have been ratified by the United States Senate, including and especially the Geneva Conventions. The Commander-in-Chief power does not allow the President to defy those treaties.

    9. Do you agree or disagree with the statement made by former Attorney General Gonzales in January 2007 that nothing in the Constitution confers an affirmative right to habeas corpus, separate from any statutory habeas rights Congress might grant or take away?

    Disagree strongly.

    10. Is there any executive power the Bush administration has claimed or exercised that you think is unconstitutional? Anything you think is simply a bad idea?

    First and foremost, I agree with the Supreme Court’s several decisions rejecting the extreme arguments of the Bush Administration, most importantly in the Hamdi and Hamdan cases. I also reject the view, suggested in memoranda by the Department of Justice, that the President may do whatever he deems necessary to protect national security, and that he may torture people in defiance of congressional enactments. In my view, torture is unconstitutional, and certain enhanced interrogation techniques like “waterboarding” clearly constitute torture. And as noted, I reject the use of signing statements to make extreme and implausible claims of presidential authority.
    Some further points:

    The detention of American citizens, without access to counsel, fair procedure, or pursuant to judicial authorization, as enemy combatants is unconstitutional.

    Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional.

    The violation of international treaties that have been ratified by the Senate, specifically the Geneva Conventions, was illegal (as the Supreme Court held) and a bad idea.

    The creation of military commissions, without congressional authorization, was unlawful (as the Supreme Court held) and a bad idea.

    I believe the Administration’s use of executive authority to over-classify information is a bad idea. We need to restore the balance between the necessarily secret and the necessity of openness in our democracy – which is why I have called for a National Declassification Center.

    11. Who are your campaign’s advisers for legal issues?

    Laurence Tribe, Professor of Law, Harvard University
    Cass Sunstein, Professor of Law, University of Chicago
    Jeh C. Johnson, former General Counsel of Department of the Air Force (1998-2001)
    Gregory Craig, former Assistant to the President and Special Counsel (1998-1999), former Director of Policy Planning for U.S. Department of State (1997-1998)

    12. Do you think it is important for all would-be presidents to answer questions like these before voters decide which one to entrust with the powers of the presidency? What would you say about any rival candidate who refuses to answer such questions?

    Yes, these are essential questions that all the candidates should answer. Any President takes an oath to, “preserve, protect and defend the Constitution of the United States.” The American people need to know where we stand on these issues before they entrust us with this responsibility – particularly at a time when our laws, our traditions, and our Constitution have been repeatedly challenged by this Administration.


  44. Okay, my friends. It’s been a blast, but Buddha Is Calling It A Day. Sleep beckons, but I will try to post more this weekend as the ministrations of Orpheus and Hippocrates allow. Again, thank you all for your public and private well wishes. They are a boost to my spirits and as such are always good medicine.

    I will now become one with an assortment of pillows.

  45. Bob,Esq.,
    That is one “interesting” article. Maybe this article should be sent to Obama with some comparisons to his subsequent actions!
    Get some rest Buddha.

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