WHILE everyone was watching the fiscal-cliff debacle, Congress and Barack Obama decided that they could still eavesdrop on Americans' putatively private conversations without putting themselves to the trouble of obtaining a warrant. The FISA (Foreign Intelligence Surveillance Act) Amendments Act, which Congress extended following weeks of fierce, impassioned a rushed single day of debate, allows federal agencies to listen to the phone calls and read the emails of American citizens' international communications (even that one day of debate, by the way, was hard won). The government must get approval to snoop from a FISA court, which is untroubled by niceties such as probable cause, and the communications in question need only pertain to "foreign intelligence information", a phrase so broad as to be utterly meaningless.

In extending the FISA Amendments Act, the Senate rejected four sensible amendments. One, proposed by Ron Wyden, would have compelled the National Security Agency (NSA) to tell Americans how many people they have spied on. Rand Paul's amendment would have reminded government that Americans have fourth-amendment protections against warrantless searches. Jeff Merkley's amendment would have compelled the government to release any FISA court decisions that contain interpretations of what the FISA Amendments Act actually permits in practice. And Pat Leahy's amendment would have reduced the term of the extension to three years rather than five. Do you know what none of them would have done? Forced the government to stop snooping. They would not even have curtailed the government's snooping (Mr Paul's might have, if it could have been made to have more teeth than rhetoric, but its actual import is far from clear). Mr Wyden's and Mr Merkley's amendments simply asked for more information about the NSA's spying to be made public, and Mr Paul's would have merely reminded the government that the constitution exists, whether they like it or not.

Mr Obama's administration won another victory for secrecy yesterday, when a federal judge declined to force the Justice Department to turn over legal memos detailing the justification for drone strikes, particularly drone strikes that kill American citizens. One of the plaintiffs, the New York Times, requested under the Freedom of Information Act (FOIA) both "all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killing" and one year later memoranda and opinions "analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist". The other plaintiff, the American Civil Liberties Union, made a similar request, although it specifically requested information pertaining to Anwar al-Awlaki, an American accused of being a terrorist who was killed in a drone strike, along with a second American citizen, on September 30th 2011 (another drone killed Mr al-Awlaki's 16-year-old, Colorado-born son two weeks later).

Though the judge sided with the administration, her reasoning was acid: "I can only conclude," she wrote, "that the government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States. The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules—a veritable Catch-22. I can find no way around the thicket of laws and procedures that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusions a secret." In other words, I would if I could.

Both plaintiffs have promised to appeal, and there is a good chance this case will ultimately wind up before the Supreme Court. But who knows when, and that is part of the problem. Mr Obama first ran for office five years ago promising to roll back some of his predecessor's more outrageous violations of civil liberties. He has done nothing of the sort. Mr Obama signed the FISA extension into law on December 30th, and he won the right to keep his rationale for killing Americans secret three days later. He deserves full measures of opprobrium for both, but this is no more about him than the Patriot Act was about his predecessor. The extension lasts for five years, by which time Mr Obama will no longer be in office. This is about America's imperial presidency and the fourth amendment, which it has trampled into irrelevant ink smudges.