Speech, Surveillance, President Obama and Justice Kagan

Dear Friends,

The sixth topic addressed in the American Civil Liberties Union report entitled "Establishing a New Normal: National Security, Civil Liberties, and Human Rights Under the Obama Administration" (here) is speech and surveillance.  The first paragraph of this article summarizes the thrust of the article.

With limited exceptions, the Obama administration’s positions on national security issues relating to speech and surveillance have mirrored those taken by the Bush administration in its second term.

The report goes on to detail how candidate Obama disagreed with the Bush Administration policy of conducting warrantless wiretaps.  Unfortunately, his actions as a Senator indicated that he just wanted Congress to have some control.  President Obama continues to defend FISA by saying, as the Bush Administration did, that the government's actions under FISA are effectively immune from judicial review.  The Obama administration has continued to argue that you can't challenge the actions of the government unless you can prove that you have been the subject of surveillance under FISA and then of course the government refuses to disclose who has been the subject of surveillance.

The article also reminds those of us that travel outside of the United States, that US border agents are authorized to copy the contents of our computers before letting them back into the country.  They have this authority and need no probable cause to exercise it.

The report also points out how the Obama administration continues to threaten our freedom of speech.  The worst example of this problem involves now Supreme Court Justice Kagan.  The ACLU report says it best.

In an important case that reached the Supreme Court, the Obama administration took the position that it could prosecute individuals under a statute that bars the provision of “material support” to terrorist organizations even if the support in question consists solely of speech—advice on issues relating to international law, for example, or on peaceful resolution of conflicts. In a dispiriting oral argument, Solicitor General Elena Kagan even proposed that lawyers could be sent to prison for filing friend-of-the-court briefs on behalf of designated terrorist organizations. The Supreme Court ultimately adopted many of the administration’s arguments and issued a decision that can fairly be described as a catastrophe for the First Amendment.

Why is that Republican Presidents appoint ultra conservatives to the bench, and Democratic Presidents appoint middle of the road or pseudo liberals to the bench?  In May, The New York Times published an article entitled "Kagan's Notable Statements and Writings" (here).  Even if you read it when it was published, I would suggest that you read it again before you relax and think that we have a reasonable replacement for Justice Stevens.  For example here is a quote from Justice Kagan's testimony at her confirmation hearing for Solicitor General, "There is no federal constitutional right to same-sex marriage."  

There are many things that President Obama has been unable to accomplish at least in part because of the Republicans' just say no to everything, but there are many things that President Obama has done that are very disappointing to those of us that supported him and believed him when he promised change.  We must hold him accountable.

Thanks for reading and please comment,

The Unabashed Liberal