Willful Violations, Willful Disclosure, Willful Authoritarianism

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Why do Barak Obama and his people in the justice department think that they can get away with not merely reinforcing some of the worst of the Bush administration’s excesses when it comes to legal secrecy and authoritarianism, but actually expanding upon it all in ways even Bush probably didn't dare to dream about? The hubris of Obama's decisions in this matter are astounding, disappointing, and downright depressing.

It isn't even necessary for your expectations to be set very high to be disappointed — mine certainly weren't — because rejecting the patterns established by the Bush administration in this area should have been the bare minimum we should have been able to expect. Apparently, though, that was too much.

Just to review what we're talking about here, Barack Obama's inJustice Department is now arguing in court that citizens don't have a right to take government agencies to court for intentional violations of laws against unauthorized wiretapping. Government agencies can only be taken to court if there is a "willful disclosure" of the information which they illegally obtained — that is to say, if they intentionally and illegally release to the general public material they intentionally broke the law to obtain.

It is only for the release of that information that they can be sued for, though — not the original criminal activity. So long as they manage to keep secret the information they obtain illegally, they can keep secret the fact that they are engaged in the illegal collection of information. If they fail in this, though, the best you can achieve is to sue them for releasing the information; while you do this, you'll have to watch them sit their and laugh over the fact that they are openly getting away with their illegal wiretaps.

We the people of the United States have a constitutional right against our government obtaining information through wiretaps without proper court authorization and oversight. According to Barack Obama, however, we citizens have no right to take the government to court to find out if they are violating this right or to stop them from violating this right.

Barack Obama has not formally announced that he's taken a pair of scissors to our Constitution to snip out the parts he's finding inconvenient; so if he hasn't started doing it in secret (would he ever do us the courtesy of informing us?) we might assume that he still technically recognizes that the Fourth Amendment retains its validity and authority. Maybe.

What this means is that we have a "right" which cannot be enforced — a right which the government technically recognizes, but which the government actively prevents from being enforced. This is, in effect, the official position of the federal government and Barack Obama: that we citizens can formally retain constitutional rights even as the government prevents us from ensuring that they are enforced, thus allowing the government to run roughshod over those rights without telling us how, why, when, or if it will ever stop.

How many other "rights" still remain on paper, but have been effectively eliminated without our having been notified yet? How many other "rights" will the Obama administration undermine or shred at every turn whenever it appears convenient for them? We certainly can't expect them to notify us about this because in their eyes, we don't have a right to have our rights protected, never mind to be told if and when the government is violating them.

I thought that the Bush administration was Orwellian in its policies and behaviors, but now I'm thinking that Obama could have given them Orwell lessons, with a few side-seminars in Kafkaesque legal briefs. There's been change all right, but it's change for the worse, and we can all believe that if this is the way the Obama administration is starting out, we're in for one hell of a ride in the coming years.

The only bright spot is the degree to which Obama supporters have been sharply criticizing him over this — not all, but most. Watching Bush supporters criticize Obama has been amusing, given the degree to which they were willing to defend Bush for similar policies, but the contrast between the two groups is instructive: few Obama supporters are willing abandon their basic moral and political principles to defend him, while few Bush supporters were willing to stand by those principles when Bush undermined them.

Will Barack Obama and his inJustice Department minions be swayed by the pressure coming from his supporters? It's possible, but it's certainly not something we can or should count on.