No “Change” In Warrantless Spying

The Article: Warrantless Spying Skyrockets Under Obama by A. Barton Hinkle in Reason Magazine.

The Text: Is it fascism yet?

That was the snarky question glued to the bumper of every self-respecting progressive’s gas/electric hybrid back during the Bush-Cheney administration. It now must be asked again.

Back then, liberals were raising the alarm about impending fascism because of post-9/11 policies such as warrantless wiretapping, wars of choice, military commissions, indefinite detention and so on.

Warrantless surveillance, for instance, drew intense scrutiny and saturation media coverage from the time it was discovered until approximately 12:05 p.m. EST January 20, 2009. Interest then dropped off markedly. After all, Barack Obama had promised “no more illegal wiretapping of American citizens.” So, problem solved.

Except it wasn’t. In fact, it got worse.

First the Obama administration defended warrantless wiretapping on state-secrets grounds. Now the ACLU has released a trove of Justice Department records showing – in the ACLU’s words – a “huge increase in warrantless electronic surveillance” from 2009 to 2011. The documents show an explosion in the use of “pen register” and “trap and trace” surveillance. Those forms of spying record information such as who is calling (or emailing) whom and for how long, but not the content of the conversation.

Since content isn’t recorded, the legal bar is set lower, and the surveillance might be technically legal. That shouldn’t get anyone off the hook: The Bush administration claimed waterboarding was technically legal, too. Now the ACLU says “more people were subjected to [warrantless] pen register and trap and trace surveillance in the past two years than in the entire previous decade.” Email surveillance, the civil-liberties group says, is “increasing exponentially.”

A few years ago these revelations would have been milked for days of banner headlines. Now they are being met with the equivalent of crickets chirping. The New York Times – which won a Pulitzer for breaking the warrantless-wiretapping story during the Bush years – has not seen fit to mention the ACLU’s findings. The election season has nothing to do with that, of course.

But it’s not just the prestige press. The 2008 Democratic platform insisted on “constitutional protections and judicial oversight on any surveillance program involving Americans.” It declared, “We reject illegal wiretapping of American citizens.” It solemnly affirmed that “we will respect the time-honored principle of habeas corpus.” This year’s platform mentions none of that.

Why the lack of interest? One possible explanation is that nobody is surprised any longer by Obama’s betrayal of his supporters’ erstwhile hopes.

After all, this is the man who promised to close Guantanamo – and didn’t. The man who promised to end military-commission trials of detainees – then sustained them. The man who said, in 2007, that “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” – then unilaterally authorized a military attack in Libya that involved zero imminent threat to the nation.

And this is the man who said policies such as indefinitely detaining foreign enemy combatants without charge had created “a legal black hole” that had “destroyed our credibility when it comes to rule of law all around the world” – then signed a law that permits the indefinite detention without charge of American citizens.

So maybe it’s just fatigue.

But that seems doubtful. The Bush-Cheney administration’s critics managed to sustain a state of apoplexy for eight long years. No infringement on the Constitution was too minor to merit a fresh geyser of outrage.

Yet now the wells have run dry. So the better explanation probably has more to do with Americans’ Red Team-Blue Team approach to politics. Bashing the other guys is far more satisfying on just about every level than insisting that your side live up to its own ideals.

We saw this during the Bush years among conservatives, who (mostly) ignored the administration’s profligate spending. Under Bush, domestic discretionary spending rose faster than at any time since LBJ’s. Most of those on the right were too busy rooting on the Iraq war and bashing peace activists to notice. Conservative concern about runaway federal spending did not pick up again until . . . well, until roughly 12:05 EST January 20, 2009. What a coincidence.

This team-sports approach has led to a one-way ratchet of government expansion. Conservatives were so busy supporting Bush’s expansion of war powers that they let him betray their small-government principles in domestic affairs. Liberals have been so happy to see Obama expand government’s domestic scope that they have let him betray their values on civil liberties and war powers. In the process, each side has come off looking like a bunch of partisan cheerleaders who care about certain issues only when it’s politically convenient.

That’s the thing about principles. If you don’t try to apply them consistently, then people are apt to conclude you don’t really have any.