Wednesday, April 8, 2009

The Sovereign Voyeur

In it's response to the Electronic Fronteir Foundation's lawsuit against domestic wiretapping (Jewel v. NSA), President Obama's Department of Justice has upped the ante, arguing in effect that there is no basis for the lawsuit on grounds above and beyond Bush's citing of "State Secrets Privilege." The new claim invokes the "sovereign immunity" of the government.

So, as Glen Grenwald writes in...

New and worse secrecy and immunity claims from the Obama DOJ

the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.

In essense, the government asserts that it may collect any and all private communications, regardless of any law Congress has passed or may pass in the future, largely on the grounds that Congress has not waived the sovereign immunity of the government in the PATRIOT Act (see page 12 et seq. of the DoJ response). Congress has then effectively neutered its law making powers, at least when it comes to matters of surveillance.

The only case when government may be held liable for unlawful surveillance is when it publicly discloses its intelligence product.

We might say, then, the government of the United States is permitted to be a voyeur, so long as it does not become a pornographer...

2 comments:

WXXX said...

On a related issue, namely that of the Obama DoJ position on habeus corpus, Grenwald has pointed out the discrepancies between Obama the Senator and Obama the President, quoting a Senate speech in support of an amendment to the Military Commissions Act of 2006 that would have restored habeus corpus. We note the significance of one passage of this speech...

I can also imagine the terror I would feel if one of my family members were rounded up in the middle of the night and sent to Guantanamo without even getting one chance to ask why they were being held and being able to prove their innocence.

This is not just an entirely fictional scenario, by the way...


Indeed, it is not entirely fictional, for his own grandfather found himself in a similar situation in 1949 when he was detained and tortured by the British for unsubstantiated suspicion of collaboration with the Mau Mau rebellion...

WXXX said...

Sibel Edmonds, recipient of a gag order in 2002 at the hands of a State Secrets Privilege invokation by the Bush administration, has for the past month or so been writing extensively on matters relating such exercizes of executive power as this on her new web log, giving special attention to the role of the press (the lap-dog press, that is, even when adopting an "alternative" guise) as the concealing revealers, the sensationalized fig leaves that rest upon the executive privy, as it were. Here, she addresses SSP directly: The Current Battle against State Secrets Privilege