The man who fell to earth

Sometimes bad news travels slow, hanging back like a funeral at the end of a parade. In the wake of much-needed good news, it’s sometimes hard to pick up the black crepe that's lurking just behind the confetti.

President Barack Obama had a lot of good news last week and this: domestic poll numbers high, hailed to the skies in Europe and Turkey, and by the troops in Iraq (where he stopped on a surprise visit that was a finely patriotic icing on the cake).

But President Obama returns to the United States just as a decision by his Justice Department has begun to resonate in this country, in the fast lanes of talk television and the Internet. Once it achieves critical mass of awareness in the public eye, this Rubicon action by the Justice Department will undo much of the goodwill Obama has cultivated with the American people, and utterly poison the steadily building sense in this nation that Obama was serious about reversing the damage of the Bush years.

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The Justice Department on Friday submitted to U.S. District Judge Vaughn R. Walker a motion to dismiss a lawsuit alleging that federal agents engaged in illegal e-mail and telephone surveillance of everyday U.S. citizens — perhaps the most cynical hallmark of the Bush administration.

The motion to dismiss the case, Jewel v. National Security Agency, claims that disclosing information on the NSA's warrantless wiretapping program would “cause exceptionally grave harm to national security.”

In its motion, the Justice Department asserts that litigation over the wiretapping operation would require the government to rival classified “state secrets.” It’s the same rationale the Bush White House employed in working to protect telecommunications giants from prosecution from spying on American citizens. Justice will formally argue the motion before Judge Walker on June 25.

The Electronic Frontier Foundation (EFF), the San Francisco-based nonprofit that monitors shifts in communications and Internet law, and a passionate advocate of free speech and consumer rights, lent its support to a 2006 lawsuit by customers of AT&T against AT&T, the Bush administration and the NSA for “illegal and unconstitutional dragnet communications surveillance in concert with major telecommunication companies.”

That lawsuit was left unresolved when Congress, last year, passed HR 6304, granting retroactive immunity to telecoms for whatever spying activities they may have performed at the behest of the Bushies — immunity stretching back to 2001.

This unresolved lawsuit is the one the Justice Department, under Barack Obama and Attorney General Eric Holder, is seeking to dismiss.

The motion filed on Friday claims that EFF's assertion that government agencies gathered information on millions of ordinary Americans is false, and that the agencies would need to only violate the First and Fourth Amendments to the Constitution and the separation of powers doctrine if “a participant was reasonably believed to be associated with al Qaeda or an affiliated terrorist organization.”

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It’s dismaying to say the least. This is one area, one indisputable point of policy in which President Obama could put daylight — acres of it — between himself and one of the more loathed policies of the Bush administration. What would lead a scholar and a professor of constitutional law to do this, to Xerox the most pernicious clandestine domestic policy of his predecessor and make it his own?

It’s dismaying for another reason. Coming at practically the same time as the Justice Department decision to request that the perjury conviction of former Alaska Sen. Ted Stevens be overturned “in the interest of justice,” after prosecutorial misdeeds were discovered, the DoJ motion to dismiss fails to build confidence in the idea of the department speaking with one philosophical voice. How can a Justice Department stand fast “in the interest of justice” in one case, and then rationalize condoning warrantless wiretapping — contrary to the Constitution that embodies that justice?



“President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties,” EFF Senior Staff Attorney Kevin Bankston said in a statement on the group’s Web site. “But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a ‘secret’ that cannot be reviewed by the courts, it feels like deja vu all over again.”

You need to know what this thing says. And you should know who opposes it and why.

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Even as he triumphs internationally, this DoJ decision, and what it appears to say about the Obama administration’s views of the American people, could be his political undoing at home.

The president has drawn fire for this and other inconsistencies of message and intent. He’s already blinked, for example, on the matter of whether the Bush cabal should be investigated for war crimes at Guantanamo.

Jonathan Turley, a constitutional law professor at Georgetown University, said Tuesday on MSNBC that President Obama appears to have donned the guise of “constitutional relativists” for whom a foundational national document is apparently subject to contemporizing and annotation, like a college textbook crowded with Post-It notes. "This is the ultimate victory for the Bush officials," Turley said. "They have Barack Obama adopting the same extremist arguments — in fact, exceeding the extremist arguments made by President Bush."


Now, with the DoJ motion to dismiss this lawsuit, Obama has suddenly, inexplicably revealed a tone-deafness about the people he was elected to govern; a curious indifference to the potential for damage to the nation’s already-fragile psyche; and, ironically, an inability to square the campaign meme of Change with the actions of an administration that change nothing, even when they should.

For months now, people have quietly wondered when Barack Obama’s glide path would end, when the curtains of this Oz-wizard would be parted, when the seemingly levitational president would finally come to earth.

Perhaps now we know.
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Image credits: Obama: Still from AP video. DoJ logo: Public domain. EFF logo: © 2009 Electronic Frontier Foundation. Obama and Bush, November 2008: The Associated Press.