Matt Yglesias

Law Enforcement Taking a Closer Look at Domestic Extremists

Via Spencer Ackerman, a nice scoop by Eli Lake about the Department of Homeland Security urging state and local law enforcement to be vigilant about the possibility of right-wing extremist violence fueled by the combination of Barack Obama and a grim economic situation:

The nine-page document was sent to police and sheriff’s departments across the United States on April 7 under the headline, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment.” It says the federal government “will be working with its state and local partners over the next several months” to gather information on “rightwing extremist activity in the United States.”

I’ll say two things about this. One is that this seems like an eminently reasonable thing to be doing. If you don’t believe that, you need to see Dave Weigel’s reporting from the machine gun show this militia stuff and Dave Neiwert’s stuff.

At the same time, I think it’d be great if some non-insane conservatives were to be a bit bothered by this. Legitimate concerns about security really can serve as a cover for abuses or misconduct. This was the problem with the surveillance organized by the Bush administration, and it’s a very real problem even with Barack Obama in the White House. As long as Bush was president, folks on the right seemed curiously blasé about this whole thing.

Obama Claims “State Secrets” Privilege to Defend Bush-era Warrantless Surveillance Program

It’s been great to see the Obama administration trimming the excesses of the Bush administration’s curtailment of civil liberties, but the disappointing reality remains that the rollback of Bush-era rules is pretty limited, as we see with the latest invocation of “state secrets” as a reason to prevent the public from finding out what kind of surveillance is happening.

Unfortunately, while disappointing this is also all rather predictable. Civil liberties is a bit of a ratchet. If the political opposition doesn’t succeed in blocking some new expansion of authority when it’s first proposed, the soon enough the opposition takes over and isn’t all that interested in curtailing its own authority. Consequently, more and more powers and secrecy start developing, abuses occur, and eventually there’s some big blowup and outraged and new rules get put into place. After all, all this has happened before. When electronic surveillance first became possible, it was immediately put into use and each successive administration found ways to expand its scope. From the beginning, there were abuses happening. And under Richard Nixon the abuses both became enormous and were uncovered. Then new rules were put into place. Rules that have been eroding ever since—first slowly, then quickly—and will probably continue to erode until the next huge scandal.

Meet The New Boss

The Obama administration seems just as determined as the Bush administration was to making sure that nobody has any legal recourse if they’ve been subject to illegal surveillance. The process is getting pretty Kafkaesque here; the basic shape of things is that you can’t sue the government over secret illegal surveillance because since the surveillance happened in secret, you can’t prove it happened. And you can’t get the documents that might prove it happened, because that would compromise the secrecy.

Personally, I don’t see any way that could wind up leading to abuses.

Thomas Tamm

The Bush administration and the congress have seen to it that nobody who broke the law and conducted illegal, secret surveillance of Americans will be punished for it. But Thomas Tamm, the whistleblower who brought the illegal activity to public attention, is still being hounded by the FBI.

That’s via Hilzoy.

WSJ: Only Secret Illegal Surveillance Will Provide Accountability

I’d thought that one beneficial result of Barack Obama being elected president was that it might cause conservatives to think twice about their post-9/11 embrace of unlimited executive power. But instead The Wall Street Journal is still upset that the new, loophole-ridden FISA is too restrictive:

What Democrats have done, in essence, is to insert an unelected judiciary into the wartime chain of command. As Mr. Kelly notes, this is producing a “lack of accountability” and “the lack of transparency into the inner workings of the FISA process.” If some faceless FISA judge denies a surveillance request from Mr. Kelly and New Yorkers die as a result, that judge will answer to no one. Under current FISA rules, we won’t even know who that judge is.

To ease the Journal’s mind, part of the point of the last revision’s retroactive immunity for lawbreakers is that any restrictions currently on the books are purely make-believe. Everyone understands now that there will be no penalties for breakin the rules. Meanwhile, Tim Lee observes that “The whole point of the Fourth Amendment is that ‘unelected judges’ oversee the activities of law enforcement.” Indeed it is. This kind of thing is sort of integral to ideas like due process and the rule of law. If nothing is overseen by “unelected judges” then liberal democracy is out the window.

Stuart Taylor: Obama Should Conduct Illegal Surveillance

A pretty stunning Stuart Taylor column in the National Journal:

Civil libertarians are rightly outraged by the brutality of some Bush administration interrogation methods; by Bush’s denial of fair hearings to hundreds of suspects at Guantanamo and elsewhere who claim that they are not terrorists; and by his years of secretly and perhaps illegally defying — rather than asking Congress to amend — the badly outdated Foreign Intelligence Surveillance Act.

But the civil libertarians’ outrage does not stop there. Indeed, the prospect of anyone in the U.S. being inappropriately wiretapped, surveilled, or data-mined seems to stir the viscera of many Bush critics more than the prospect of thousands of people being murdered by terrorists. This despite the paucity of evidence that any innocent person anywhere has been seriously harmed in recent decades by governmental abuse of wiretapping, surveillance, or data mining.

On these and similar issues, Obama will have a choice: He can give the Left what it wants and weaken our defenses. Or he can follow the advice of his more prudent advisers, recognize that Congress, the courts, and officials including Attorney General Michael Mukasey have already moved to end the worst Bush administration abuses — and kick the hard Left gently in the teeth. I’m betting that Obama is smart and tough enough to do the latter.

Kicking the term “Bush critics” around is a huge red herring in this context. Bush is going to be out of office on January 20th. If anyone conducts illegal (or “inappropriate” to use Taylor’s newspeak term) surveillance of anyone, it’s going to be Barack Obama. Similarly, nonsensical talk of giving “the hard Left” a gentle kick in the teeth is neither here nor there. For years now the sensible center has engaged in the weird conceit that dislike of illegal violations of Americans’ constitutional liberties is some kind of odd symptom of possessing unduly vocifierous dislike of George W. Bush. But the issue, of course, extends far beyond Bush. The issue is whether or not we’re going to have meaningful limits on the power of the federal executive to conduct surveillance. Taylor thinks we should be so petrified of the risk of terrorist attack that we say “no.” After all, being illegally wiretapped never killed anybody.

I, for one, don’t want to live in that country. We already saw in the middle of the twentieth century where unlimited surveillance power leads — to massive politically motivated abuse. And of course it’s true that nothing J. Edgar Hoover or Richard Nixon ever did with their unlimited surveillance power ever “seriously harmed” anybody in the way that being killed by a terrorist harms you. But it still wasn’t a good idea to let them do that. American democracy can — and in fact has — survived a large-scale terrorist attack. But it can’t survive if the threat of terrorism is taken to mean that there should be no meaningful restrain on executive power.

Conservatives Rediscover Passion for Limits on Executive Power

Karl Rove, “The Architect” of the collapse of the conservative political coalition and the rise of a Republican president so inept that he’s presided over two failed wars a global economic meltdown the worst terrorist attack in American history and the destruction of a major American city, warns us of trouble ahead:

There are also plans to use the Obama campaign’s email list to lobby for Mr. Obama’s policies. The Chicago Tribune, reporting comments from Obama spokesman Steve Hildebrand, summed up the plan this way: the email list could be used “to challenge Democratic lawmakers if they don’t hew to the Obama agenda.”

Just one problem. It’s illegal. There are statutory prohibitions on the White House from using tax dollars to directly lobby Congress by unleashing emails, calls and visits. That’s up to outside groups to do.

Rove is confused here. The list belongs to Obama for America. The proposal would be for that organization to continue to exist in some form, still controlling the list and still maintaining a relationship with Obama’s supporter. That separate organization would be engaged in whatever activities are being contemplated.

But it’s worth basking a bit in this persnickety concern for legal niceties. After all, Rove and George W. Bush have propounded the view that if Obama wants to bring pressure on Democratic lawmaker there’s nothing stopping him from ordering surveillance of the phone calls and emails made by members, their staffs, and their families in order to gain information with which to blackmail them. That sort of thing happened regularly, typically with FBI Director J. Edgar Hoover rather than a president as such being the main instigator, before 1970s-era surveillance reforms that Bush believes can just be ignored. Similarly, Obama could have family members of congressmen kidnapped and shipped off to secret facilities where they’ll be threatened with torture. Or the member themselves could be held without trial indefinitely in offshore military facilities. There’s a lot more to worry about than hanky-panky with email lists. Welcome to the brave new world.