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Ben Rhodes, Barack Obama’s Foreign Policy Advisor and Senior Speechwriter, has come out in public with an explanation for why Senator Obama has decided to support H.R. 6304, the bill that not only revokes citizens’ standing to file constitutional challenges to warrantless surveillance but also enables wiretaps, electronic surveillance and physical searches without a warrant, without any oversight and without any punitive consequence for periods of 67 days:

I understand your disappointment. As Barack said, he would not have written the bill this way.

But as for the civil libertarians, I think we all believe that the balance between security and liberty was badly skewed under this Administration. This bill continues a restoration of that balance. It restores the principle of oversight that the Bush Administration ignored. It provides for some accountability for past abuses. And when Barack Obama is President, you will have a President who is firmly committed to
protecting our liberties as vigilantly as we protect our security.

“Balance between security and liberty?” The Bill of Rights in the Constitution of the United States of America contains no “balance between security and liberty.” Americans’ civil liberties are, according to this supreme law of the land, paramount and inviolable. Rhodes’ formulation as he speaks for Obama changes the Fourth Amendment of the Constitution from this:

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.

to this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, unless the president’s Attorney General declares otherwise, 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, unless the president’s Attorney General declares otherwise.

This whole notion of a “balance between security and liberty” is the notion that yes, the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall indeed be violated when a presidential administration feels it to be necessary. The Fourth Amendment, in Ben Rhodes’ formulation for Barack Obama, becomes a suggestion. This is a profoundly unAmerican idea.

Don’t believe me? Believe Ben. Not Ben Rhodes. The other Ben. Ben Franklin: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Ignoring for the moment that in America we have no “balance” between security and liberty, this bill does not “continue a restoration of that balance.” Through retroactive immunity it removes Americans’ standing to file suit in court and challenge the constitutionality of this very sort of warrantless surveillance. It permits your government in the name of security to spy on you for 67 days with no supervision, no approval, no oversight, no warrant, no reason, no consequence should the spying be carried out in bad faith, and no limit to the government’s ability to retain information gained in these spying episodes so long as they claim it to be necessary for, yes, security. This bill continues the erosion of liberty in America, and for Ben Rhodes to claim otherwise suggests either ignorance or a contempt for Americans’ ability to actually read this bill and check his claims.

How about Ben Rhodes’ contention on behalf of Barack Obama that H.R. 6304 “restores the principle of oversight that the Bush Administration ignored”? The oversight granted so generously to the FISA court only kicks in after 67 days, if a presidential administration wants to engineer it that way, and does not even review the appropriateness of “the place to be searched, and the persons or things to be seized.” Such review prior to granting a judicial warrant is required by the Constitution, but it is negated in H.R. 6304. The only oversight by this FISA court is of the methods used in surveillance — and this oversight is merely suggestive considering that a presidential administration can keep and use whatever information is gathered no matter what the FISA court says after the fact.

How about Congressional oversight? Well, Section 707 of H.R. 6304 says that the Attorney General has to submit a report every six months containing the number of FISA spying orders and the number of “emergency acquisitions,” those miracle 67-day open windows for an administration to sweep up whatever it wants without any reason or consequence. Who does that report go to? Why, the House and Senate Judiciary and Intelligence Committees, the very committees that knew for years of George W. Bush’s illegal warrantless wiretapping program and did nothing to stop it. Will you get to see these reports? Don’t bet on it: the reports are to be issued “in a manner consistent with national security.” They’ll be confidential reports. And finally, the Congress is given nothing to do with these reports, no new power to stop what’s going on if it’s inappropriate. Inappropriateness, by the way, is something the Congress will find itself hard pressed to determine given that the report only contains numbers of incidents, not the details of the incidents that would permit actual substantive oversight to occur.

Ben Rhodes claims on behalf of Barack Obama that H.R. 6304 “provides for some accountability for past abuses.” This comes in the form of an Inspectors General report from within the administration, judging the administration. J. Clifford pretty much eviscerates Rhodes’ claim in his post of two days ago:

The report merely makes suggestions about reforms that could be made, if the Bush Administration wanted to make them. The reforms are not required, and the Department of Justice now has the power to completely ignore them.

You know what has happened as a result of that Inspectors General report that the Barack Obama campaign says so proudly will serve as a model for investigating George W. Bush’s warrantless wiretapping program? Two newspaper articles about the report were written. Then, 29 blog articles were written about what was revealed in those newspaper articles.

That’s all.

That is what Barack Obama promises as “accountability” for George W. Bush’s program that spied on the personal communications of millions of Americans - Americans who were never even suspected of any crime.

Rhodes completes his rhetorical pirhouette with this little tidbit:

And when Barack Obama is President, you will have a President who is firmly committed to
protecting our liberties as vigilantly as we protect our security.

Barack Obama made a commitment to protecting our liberties, on the basis of which I voted for him in the primaries. With the primaries won, Obama revoked his commitment to protecting our liberties. If he can’t keep a commitment now, why should we expect him to do so after he’s elected?