Thanks for protecting our civil liberties, Obama — NOT

NOT! is right

Only a couple of months after Barack Obama, by that time the putative leader of the Democratic Party, caved in the Senate on the FISA amendment bill and voted to allow the possibility that telecom companies would be immunized from prosecution for spying on ordinary Americans, the National Security Agency is moving toward trying to make that a reality.

Justice Department special counsel Anthony Coppolino says the government intends to meeth the immunity bill's procedural hurdles by Sept. 19 and thus seek blanket immunity on behalf of the companies.

Now, U.S. District Judge Vaughn Walker, overseeing 36 commingled lawsuits in a San Francisco federal court, still may not grant that immunity request. In fact, Walker has set a Dec. 2 hearing in which he would allow the Electronic Frontier Foundation to challenge the immunity legislation B.O. helped pass July 9.

Per the Wired story, the EFF is challenging the constitutionality of Obama’s work on five grounds:

1. Congress violated the separation of powers by attempting to usurp judicial authority to decide the Fourth Amendment claims of millions of ordinary Americans who have been, and continue to be, subjected to dragnet surveillance for the past seven years.

2. Congress exceeded its constitutional authority by passing legislation that grants to the Executive the discretion to essentially dictate the outcome of specific, pending litigation.

3. The statute improperly requires dismissal of claims of illegal surveillance between September 11, 2001 and January 17, 2007 based not on a judicial finding about the facts of the surveillance or the legality or constitutionality of the surveillance, but instead merely based on a 'certification" from the attorney general that some unknown member of the Executive branch told the carriers that some undescribed surveillance is 'lawful.'

4. The legislation denies due process to the plaintiffs by granting to the Executive, rather than the courts, the essential decision making about their constitutional and statutory rights.

5. The legislation purports to grant the Executive a unilateral right to require that the court keep secret not only the evidence, but also its own decisions.

On paper, the EFF has got a strong claim. But not ironclad.

Point No. 1 may play well to judges, starting with Walker, who are prickly about judicial prerogatives and independence. Legally, in the narrow sense, a bit different.

Point No. 2 is simply a legal pleading.

Points No. 3 and 4 are the key, with Point 5 tagging along with Point No. 4 on due process issues.

But, since Obama is a constitutional law genius, he anticipated all of these concerns and duly weighed them before rejecting them, right?

So much a constitutional law genius that Passive Pelosi™ and the other FISA 45-percenters in the Democratic party followed right along.

You know you still have an option.

Vote Green.