Bush, after all, was infamous for starting a still-mysterious National Security Agency program to eavesdrop on phone calls, texts, and emails by U.S. citizens overseas after the terrorist attacks of September 11, 2001.
But that comparison misses a larger point: Bush never got permission from courts to listen in on those phone calls. Obama's administration, on the other hand, is working within an existing legal framework to get subpoenas, warrants, and orders to access these records. That represents a big difference in terms of constitutional checks and balances.
In a 2007 speech by then-Sen. Barack Obama, the presidential hopeful pledged to chase terrorists "without undermining our Constitution and our freedom." He promised to work with the legal system set up by the Foreign Intelligence Surveillance Act (FISA) of 1978, in which court judges can secretly review the government's plans to track suspected terrorists in advance. "That means no more illegal wire-tapping of American citizens," Obama added:
"No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary."
As a presidential candidate in 2008, Barack Obama pledged to reform the Patriot Act and rescind the FISA Amendments Act, but as president he reversed his position. The Obama administration has fought bipartisan efforts in Congress to bring the change he once championed.
The result is the "new normal": surveillance, often of questionable legality and sometimes clear illegality, against which Americans have little effective recourse, on the rare occasions that we even know that violations are taking place.
