If life were a courtroom, Obama the lawyer would not get a pass on his 180 turnabout on surveillance

judges-gavelIn the wake of almost daily revelations about the scope of domestic spying during Obama’s watch, his apologists are scrambling to explain away an unavoidable truth about the difference between Obama, the successful presidential candidate, and Obama, the president of the United States who has been spying in just about every way, shape, and form on the people who elected him to office.

The official White House press office . . . oh, sorry, I read that wrong . . . the New York Times has come up with answer:  Obama was right to oppose spying when he was a Senator, because that’s what Senators do; and he’s correct to authorize spying when he’s a president, because that’s what Obamas who are presidents need to do.  No.  Really.  That’s exactly what the Times said:

As a young lawmaker defining himself as a presidential candidate, Barack Obama visited a center for scholars in August 2007 to give a speech on terrorism. He described a surveillance state run amok and vowed to rein it in. “That means no more illegal wiretapping of American citizens,” he declared. “No more national security letters to spy on citizens who are not suspected of a crime.”

More than six years later, the onetime constitutional lawyer is now the commander in chief presiding over a surveillance state that some of his own advisers think has once again gotten out of control.


The journey between those two speeches reflects the transition from the backbench of the United States Senate to the chair behind the Resolute Desk in the Oval Office. Like other presidents before him, the idealistic candidate skeptical of government power found that the tricky trade-offs of national security issues look different to the person charged with using that power to ensure public safety.

Putting aside the Times implicit acknowledgment that Obama either was a stupid Senator, incapable of understanding national security, or that he’s an evil President, who’s working to gather intelligence so that he can later use it against people he deems, in future, to be his enemies, there’s something else that bothers me about the Times‘ argument.  It’s the political equivalent of the judicial estoppel doctrine.

Judicial estoppel means that, in the context of a lawsuit, if you put an argument before the court and lose on it, you are allowed later to come up with an entirely different argument, including one that completely discredits your earlier failed effort.  However, if you put an argument before the court and win on it, meaning that your argument affects the outcome of the judicial process, you may not later disavow that argument.  You’re stuck with it or, in legal terms, you’re judicially estopped from changing your position:

In accordance with the purpose of judicial estoppel, we conclude that the doctrine should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 [70 Cal.Rptr.2d 96, 103] (emphasis mine).

Candidate/Senator Barack Obama ran on a platform that vigorously opposed, in his own words, “national security letters to spy on citizens who are not suspected of a crime.”  This stand was not incidental to his candidacy.  It was, instead, one of the central tenets of his promise to be the un-Bush.  It was part of how Obama won the presidency.

Having secured his victory, Obama is now advancing an entirely inconsistent position.  In court, that’s a no-no.  In the political world, at least without an explanation for the change, it should be a no-no too.  Moreover, Obama’s pretending that he knew nothing about the spying that took place on his watch (which the New York Times has implicitly conceded was yet another Obama lie) cannot be sufficient to invalidate a perfect example of a situation in which the doctrine of judicial estoppel should apply.

Once again, Obama and the MSM, working together, play judge and jury when it comes to Obama’s conduct.  There’s never a need for an executioner, of course, since Obama and the MSM always reach an acquittal.

This reminds me of an old joke:

Two men are standing together, watching a third man walk by.  The third man is infamous for his arrogance, narcissism, and hypocrisy, prompting one of the men watching to turn to the other to say, “There but for the grace of God, goes God.”

Obama and the MSM may think Obama is the Messiah, although a rather tattered and tarnished one now, but we’re still lucky:  Thanks to the grace of God, he’s not God.