A Letter to the Next President of the United States

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Senator Obama:

In his recent opinion on the Boumediene case, conservative Justice Anthony Kennedy reminded the Executive and Legislative branches that we cannot suspend the Constitution in times of crisis.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

He went on to remind "the political branches" that the Article III Courts must not be turned into a mere rubber stamp for the Executive Branch–particularly when, as with habeas corpus, those Courts review laws designed to serve as a check on the Executive Branch.

For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this context, the court that conducts the habeas proceeding must have the means to correct errors that occurred during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding.

Ultimately, the Supreme Court found aspects of the Military Commissions Act unconstitutional because it tried to limit the review of Article III Courts to mere review of whether the Administration had complied with its own procedures, and not a real review of the legality of the detention of men at Gitmo.

The Court of Appeals has jurisdiction not to inquire into the legality of the detention generally but only to assess whether the CSRT complied with the “standards and procedures specified by the Secretary of Defense” and whether those standards and procedures are lawful.

Yet this is precisely the kind of procedural review that the current FISA bill envisions. The "political branches" are attempting to limit court review of wiretaps on Americans to a procedural review in three ways:

  • The Court can only certify that the current Attorney General has claimed the warrantless wiretap program was legal; it cannot assess the representations to the telecoms, nor review the legality of the underlying program.
  • The Court can only approve the procedures planned in a given wiretap program, it cannot review whether the actual program is legal.
  • The Court can only review proposed minimization procedures intended to protect US persons’ data; it cannot review whether the Administration is actually following its own minimization procedures.

The Courts’ role in protecting Americans’ Fourth Amendment rights is just as important a check on unrestrained executive power as its review of habeas corpus. After all, the Fourth Amendment, just like habeas corpus, is a foundational principle of this country designed to guard against the abuse of power familiar before our Forefathers revolted against the rule of Kings. As Justice Kennedy said, we cannot suspend these principles simply because the country faces a crisis.

Senator Obama, you are asking voters to choose you to become the President of the United States. You had to as Senator–and will as President–swear an oath to protect and defend the Constitution.

You cannot remain silent on this issue and at the same time fulfill your promise, the one you have made, and the one you will make, to defend the Constitution. Remaining silent rejects the separation of powers. Remaining silent presumes that the "political branches" can simply legislate the Courts into submission. And remaining silent communicates that you–the next President of the United States–believes checks on executive power like habeas corpus and the Fourth Amendment are mere niceties and not foundational principles of this great nation.

As the presumptive leader of the Democratic Party, you can lead your fellow Senators in rejecting this unconstitutional law. But without your leadership, the Constitution will suffer a dangerous blow.

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54 replies
  4. Tross says:

    So I’m wondering what the media will cover today — (a)Scotty’s watered-down mea culpa or (b)FISA capitulation by the Dems.

    It’s not in their nature to be able to cover two stories at once, and since there’s nothing “sexy” about gutting the Constitution, my money’s on the talking heads calling Scotty nasty names all day.

    • brendanx says:

      Obama has stated clearly he won’t do anything (per commenter ffein):

      Thank you for contacting Obama for America about proposed legislation to give phone companies legal immunity for past wiretapping. Senator Obama has opposed this legislation and stood with Senator Dodd, cosponsoring his amendment to remove this special interest provision from the bill that came before the Senate.

      Senator Obama believes strongly in accountability, and when he is President, there will be no more illegal wire-tapping of American citizens; no more national security letters to spy on citizens who are not suspected of a crime; no more tracking citizens who do nothing more than protest a misguided war. Our Constitution works, and so does the FISA court. By working with Congress and respecting our courts, Senator Obama will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.

      Thank you again for contacting us.

      • Bushie says:

        I called Obama’s campaign again today. The dude that I talked to started talking the bilge you quoted (he was somewhat testy). I told him this is insufficient and as the Democratic candidate for the Prez, he must take a strong stand for the Constitution and the 4th amendment today. Not likely. Change candidate, not likely.

        Obama Campaign
        866-675-2008 (wait for recorded voice saying press 4 to contribute; instead press 6) then give them hell

  7. brendanx says:

    Don’t the plaintiffs in these suits to be dismissed immediately have standing to challenge the constitutionality of this law?

    • emptywheel says:

      I think they do, which is the one blessing of the review going through a District Court rather than FISC–if they do object, it’ll be public.

      Certainly the al-Haramain plaintiffs could make a good case.

    • PJEvans says:

      Either they have standing but the government will say it’s a state secret so neener neener, or they won’t have standing so neener neener.

      It’s a stacked deck with one goal: keeping secret everything done by this group of criminals.

  8. Hugh says:

    If Obama were going to take a leadership role on FISA, he would have done so already. Hoyer has after all been sneaking around on this for months. It is always possible that Obama may intervene but each passing hour makes that less likely.

    • brendanx says:

      If only the tsar knew!

      I found the phrase “when he is President, there will be no more illegal wire-tapping of American citizens” arrogant and insulting. I take it to mean the law will remain on the books but our new, wise and just ruler will refrain from using these powers.

    • MadDog says:

      This was “cooked-up” as a deliberate strategy by Congressional Democratic Leadership.

      The idea was to take off the table anything that the Repugs might try to use against Democrats in the 08 Elections.

      Steny Hoyer was selected or volunteered as the watercarrier for 2 very simple reasons:

      1. Position of Leadership. The watercarrier needed to be at or near the top of the Democratic Congressional Leadership to both “negotiate” the surrender bill with Repugs as well as “lead” the Democratic Congressional donkeys to water.

      2. Safe Seat. The watercarrier needed to be ensconced in a “safe seat” so as not to be susceptible to DFH blogger vitriol/pressure. With 27 years in his seat, Steny could easily slough off any outrage directed at him. His constituency would at most simply yawn and rollover.

      As I said last night:

      “Clear the tables! Wipe it nice and clean!”

      If we just do what the Repugs want, then the Repugs won’t have anything to use against us in the 2008 election.

      Such is the Democratic Leadership Villager logic…

      …Power trumps principle.

      • katiejacob says:

        I agree. I spoke to Debbie Wasserman Shultz at a fundraiser in MI about FISA and she said the same thing, that the dems had to compromise on FISA or the Republicans would use it against them in Nov., calling them soft on terrorism, but I think it is more than that. They could have just let it drop and revert to FISA. It was the Dems who want this action. I tend to go with Jonathon Turley’s proposal last night on Keith, that while immunizing Bush, they are covering their own asses because they were complicit,they knew about the wiretapping program.

        Emptywheel,
        is there any chance that someone could take this piece of crap legislation(if it passes in the Senate and is signed into law by Chimpy)before the SC, and they would strike it down too,like the GITMO proceedings, as unconstitutional?

  9. Leen says:

    Great letter Ew. But let’s be real it’s all over we are watching it crumble. The Fisa vote this morning just reconfirmed this.

    The Dems have more than likely helped themselves lose the 2008 election today. Oh the Repugs or the Dems may put up a great facade this fall “hope and change” and all of that.

    But we are tripping over to many dead people in Iraq…it’s looking like it’s too late to recover.

    Keller is trying to make McClellan out to be a liar. What a creep

    • cboldt says:

      – The Dems have more than likely helped themselves lose the 2008 election today. –

      I doubt it. There is too much time between now and the election. Some other issue will turn the election one way or the other. The economy is always a good bet as THE issue that people vote.

      • earlofhuntingdon says:

        The Dems certainly have taken a stab at reducing voter turnout. But I agree that most of them think that this vote is either a freebie – because only DFH’s and law professors are following it – or will help them with the knee-jerk law and order crowd.

        The idea that it might be bad, per se, to immunize the government’s chief executive and his corporate supporters from oversight or accountability doesn’t seem to be relevant to them. An astounding observation that justifies and seriously competes with Mr. Cheney’s deeply held cynicism.

  10. Cujo359 says:

    Nothing about your experience surprises me, Bushie. Obama’s spent his whole political career punting on the risky issues. He’ll do it again here.

  11. JThomason says:

    Kennedy did not shy away from identifying an unchecked executive with “tyranny.” I found this judgment to be particularly brave. Some may avoid the term in an effort to be polite. But in the end this freedom from coercion is what we are defending against and highlights what is at stake.

  12. JTMinIA says:

    Bush was re-elected by the kind of people who would “fall” for the idea that voting against immunity makes America less safe.

    Obama knows this.

    Obama wants to be President.

    Connect the dots.

  13. klynn says:

    Marcy, this IS perfect.

    I wish the site had a print option for this.

    I printed copies of this and started to distribute it in our neighborhood with phone numbers of senators and a list of the House members who decided that the Constitution means nothing.

    I am driving a copy down to the Columbus Obama campaign headquarters. I suggest anyone in Chicago who can make it down and hand deliver this letter by Marcy should. The more the better.

    I am also faxing a copy attached to my cover letter to his headquarters.

    We need to pound home that voting for immunity makes the country even less safe than the pitch that voting against it does.

    • cboldt says:

      – We need to pound home that voting for immunity makes the country even less safe than the pitch that voting against it does. –

      I think that’s a tough argument to make. Communist USSR and now Communist China are safe. Intrusive government surveillance and repression of dissent aren’t safety issues. They are freedom issues. And if you don’t know (or don’t think) you are being snooped on or tracked, then it doesn’t even feel repressive.

      Congress is doing it’s part by sining the tune, “we’re not snooping on you, we’re only snooping on people we suspect.”

      • klynn says:

        Having lived in Communist USSR, I would have to say that freedom and safety are two sides of the same coin.

        Many in the former USSR know the difficult pain of self censorship due to their knowledge of being watch and listened in on. Many do/did not feel safe speaking their mind. I never met anyone in the former USSR who did not think they were not being watched or listened to.

        I too did not feel safe because I knew I was watched.

        I was also detained cboldt and barely got out of the USSR alive. Safety and freedom are intertwined.

        I never found anyone in the former USSR who felt safe from crime or government violence. Never.

  14. earlofhuntingdon says:

    Thank you, EW. Articulate, intelligent, direct, respectful – and challenging. Obama, like Bush, is about to learn that the presidency is not a sinecure, but the hottest hot seat job on the face of the earth.

  15. Nell says:

    Great letter, EW.

    Please, wheelers, help me out on a point I’ve seen raised in comment sections over the last few days; I need cites and links if they exist.

    Is there any documentation of the statement that the warrantless spying began in February 2001? Is that just tinfoil hattery in comment sections, an over-interpretation of a real fact that doesn’t actually imply that the dragnet began then, or is it a supposition with some substance?

    • prostratedragon says:

      All I can find right now is that NSA approached Qwest as early as Feb 2001 about customers and telecom protocols.

      Looks like you might be on target that there is some extrapolating going on, if this article’s revelations, which I do recall now, are the source.

      And wavpeac, woo lawd yes. Unfortunately, that is very Chicago, the city of DeNial on the Lake.

    • cboldt says:

      – Is there any documentation of the statement that the warrantless spying began in February 2001? –

      It’s an inference made from testimony by the ex-CEO of Qwest, Nacchio, that Qwest was approached by the government in Feb 2001 with a request to implement (for hire, at a handsome profit) some sort of surveillance routine or hardware. Nacchio/Qwest rejected the offer – or conditioned it on obtaining paperwork in conformity with statutory law. Nacchio claims that the government cut off the lucrative deal because of insistence on conformity with statutory law.

    • bmaz says:

      Neil, and I am not being flippant here, it started shortly after Alexander Graham Bell called Watson. It has always been the case, it is a question of degree and whether or not it was the “official policy” of the US Government. I do believe the Bushies stepped up the activity greatly the second they took office; however, I do not believe they made it the official policy until after 9/11. Don’t know if this helps or not.

  16. wavpeac says:

    Is anyone else tired of defensiveness on the part of the Obama fan club. I am supporting him, but I have called twice and faxed a letter myself (not as well written as one here by our beloved E.W) and demanded that Obama do something to stop this travesty. I went on the huff po and dkos site to try to garner support for these calls and letters and had many “followers” suggest that he WILL do something but he can’t right now.

    I asked the person on the line today if Obama would be Washington D.C. SHe said she didn’t know where he would be today. I was just absolutely floored by the indifference.

    I don’t want any more pretty words. I want action…and I want my constitutional rights back!

    • JTMinIA says:

      Some people (with whom I can sympathize) are no in election mode, hard core. They want Obama elected. They don’t want to give any ammo to the other side. They want him to move “towards the middle.” They have no problem with him not helping on an issue such as this.

      It’s not all defensiveness. It’s a desire to make sure he wins. I don’t like it, myself. But I understand it.

  18. cboldt says:

    – You had to as Senator–and will as President–swear an oath to protect and defend the Constitution. –

    ROTFL. Oath, schmoath. That’s just words.

    “Passing FISA IS defending the Constitution, for without a country, what will the Constitution matter?”

    Obama is as big a phony as the rest of them. Scratch that. He’s a bigger phony.

  19. Nell says:

    Thanks prostratedragon, cboldt, and bmaz. All of your comments have helped.

    @bmaz: Not as helpful to my specific question, but not anything that I disagree with, either. You’re preaching to the choir; my college had its phone operator listen in to students’ and faculty phone calls for the FBI, and looked the other way as agents and cops conducted illegal and barely-legal intrusions against “targets”.

    Much embarrassment when a lot of that came out, from documents taken from the nearby FBI headquarters laying out the details of COINTELPRO. Had my college’s administration had the chance to hush that up in advance, they’d have done so, much as Speaker Pelosi and Majority Leader Reid are doing now. For the same reasons: disclosure of what actually went on would make public their complicity.

  20. klynn says:

    “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

    Benjamin Franklin

    • cboldt says:

      I like that Franklin quote myself. I just left a post at Volokh, where I opine that in a choice between privacy (a subset of liberty) and security, people will choose security.

      I think it’s a false choice, but that’s the one that people are subconsciously making.

  21. cboldt says:

    – I was also detained cboldt and barely got out of the USSR alive. –

    That’s what you get for being a dissenter against the established order. (that’s tongue in cheek – and I know, not funny)

    I think I’m being “watched” by the government (albeit not closely, and more by automated devices, cameras, and software that monitors my financial activity – as well as full review of my public statements), and I too “self-censor” so as to avoid becoming an object of closer government attention.

    I feel mostly safe from the government, but know that mistakes are made, and that I could be an innocent, subjected to unjust exercise of government power.

    I don’t think that the US is as repressive as the former USSR or China, but in surveillance matters, I think there may well be close equivalence. The public is sensitized to being under surveillance ONLY to the extent the government ACTS on what it knows. In the USSR and in China, the government is more active against threats to its own legitimacy.

  22. Leen says:

    Obama just “happened” to be out of town the day of the Kyl Lieberman amendment. Doubt if he is going to take an outright stand on this.

  23. klynn says:

    In the USSR and in China, the government is more active against threats to its own legitimacy.

    I would have to amplify that statement. They (communist governments) are active against any action which does not fit the collective norm. This would be quite beyond the concept of threat against it’s own legitimacy.

    I wish I could share my experience sometime. Then this concept would make more sense. My being detained had nothing to do with dissent (and I know, tongue and cheek stated above). My story use to make people physically ill. I use to travel the country sharing my story.

    The power to enforce violence on individuals for no reason but to intimidate is an aspect of Communism which gives this power to the lowliest of government law enforcers as well as to the highest government power. Never thought cross-cultural exchange would lead the US to this state…Guess we are on our way…

    • JThomason says:

      Your story sounds fascinating. Have you written it up? I have become interested in Russian culture in the last few years in particular because it has occurred to me that these people have practical experience in dealing with repressive governments. I have asked expatriated Russians about how they responded to the repression and was told that they took their politics “to the kitchen.” The central control is mind boggling. When I entered the border zone along the Siberian,Khazakhstani, Mongolian, Chinese border last summer my approval had to be made by personal application in the town adjacent to the Altai border zone then faxed to the Customs House there from Moscow. Talk about an unwieldy bureaucracy.

      • klynn says:

        No, have been asked many times to write a book about it. I think it just might be time.

        Let me just add, my story ends with the border guards in Finland knowing who I am, removing me from the train, acting as though they are going to interrogate me and then stating, “Welcome to the west!” and then they handed me a Coca Cola.

        I wept, drop to my knees and kissed the ground… Everyone on the train opened their windows and cheered…

        A moment etched in my mind forever…

  24. klynn says:

    …where I opine that in a choice between privacy (a subset of liberty) and security, people will choose security.

    Once you have been a victim of identity theft like myself (and in my experience it was due to government regulatory compliance with the Patriot Act through my health insurance company) you understand that privacy IS security.

    Feingold was spot on to request the unwanted data be destroyed.

    I think if one was to restate the question with an understanding of what can happen to the individual with a lack of privacy, people can begin to understand privacy and security are inter-related and you cannot have one without the other. They are both subsets to liberty.

  25. cboldt says:

    – active against any action which does not fit the collective norm. This would be quite beyond the concept of threat against it’s own legitimacy. –

    Yes, I was just using a shorthand, the first one that came to mind. At any rate, it’s government using force to stifle the notion or power or exercise of personal will. It sounds as though you expressed some sort of value to personal will.

    – Never thought cross-cultural exchange would lead the US to this state –

    There is more than one way to skin a cat. I think the “power” thing is part of human nature, and that the power-elites will adopt whatever social norms are most likely to result in gaining elevated status within that social norm. In the US, the buzzword is “democracy.” If the public can be made to think it is exercising free choice in leadership, then it won’t become restless. The two party system serves member of both parties equally well. They are ALL elites and power brokers. Same extends down to the petty tyrants at town hall.

    As for your issue with identity theft, that’s a privacy issue where the government does NOT intend for people outside of government to access your data. The government also does stupid things, like require SSN to appear on the face of military ID cards. Duh. They used to publish the SSN of nominees in the Congressional Record!

    Anyway, I don’t trust the government to exercise good judgment, despite their best intentions. And at the level of Congressperson, I take them as presumptively lying every time they open their mouths. As evidence, I compare what they say with what they pass into law. Like a broken clock, sometimes they aren’t lying.

    On FISA, I don’t believe they want to protect my privacy from NSA/FBI/DOJ prying eyes – they only want to protect it as against other members of the public.

    • JThomason says:

      Still the 4th Amendment and civil rights litigation has functioned as an effective check on executive power for some time even if it eroding. It speaks to the possibility of institutional controls of human nature. Not that such is infallible or not subject to erosion, but these deeply ingrained legal/cultural principles have an effect.

  26. wrensis says:

    A little off subject but I wonder how many of the Signing statements and Executive orders would be reversed by Obama.

  28. mostest says:

    “But without your leadership, the Constitution will suffer a dangerous blow.”

    This is where your otherwise well reasoned letter took a fatal turn for the worst. Obama and leadership are not friends. They do not hangout together. They are strangers. What in Obama’s legislative, “community organizer”, law school lecturer background would ever possess you to use Obama and leadership in the same sentence. Voting “present” – NO. Giving a speech and then when it counts voting to fund the war you spoke against- NO. Please.

    Obama Leadership the new oxymoron.

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