Posted on 02/28/2009 11:20:39 AM PST by DBCJR
The Obama DOJ's embrace of Bush's state secrets privilege in the Jeppesen (torture/rendition) case generated substantial outrage, and rightly so. But it's now safe to say that far worse is the Obama DOJ's conduct in the Al-Haramain case -- the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush's NSA warrantless eavesdropping program. Here's the first paragraph from the Wired report on Friday's appellate ruling, which refused the Obama DOJ's request to block a federal court from considering key evidence when deciding whether Bush broke the law in how he spied on Americans:
A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.
And here are the two paragraphs from the AP report:
The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government's warrantless wiretapping program. . . .
The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.
Let's just pause for a moment to consider how remarkable those statements are. One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President's actions. They would insist that "secrecy" prevented a judicial ruling even when the President's actions were (a) already publicly disclosed in detail and (b) were blatantly criminal -- as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized. Secrecy claims of that sort -- to block judicial review of the President's conduct, i.e., to immunize the President from the rule of law -- provoked endless howls of outrage from Bush critics.
Yet now, the Obama administration is doing exactly the same thing. Hence, it is accurately deemed "a blow to the Obama administration" that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants. Why is the Obama administration so vested in preventing that from happening, and -- worse still -- in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?
Obama defenders take note: this is not a case where the Obama DOJ claims more time is needed to decide what to do, nor is it even a case where the Obama DOJ merely passively adopted the Bush DOJ's already filed arguments. Here, they have done much, much more than that. Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding -- emergency appeals, requests for stays, and every time they lose, threats of still further appeals, this time to the U.S. Supreme Court.
During the controversy in the Jeppesen/rendition case, there were actually "defend-Obama-at-all-costs" advocates in the comment section offering the painfully ludicrous excuse that Obama only embraced Bush's State Secrets theory because Obama secretly hoped and expected to lose the case and thus create good judicial precedent. But in the Al-Haramin case, the Obama DOJ has now lost -- twice -- in their attempts to invoke secrecy to stop this case from proceeding, but they just keep searching for a court to accept their claims:
Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security. . . .
[H]ours after the appeals court made its decision, government lawyers filed new papers insisting they still did not have to turn over any sensitive information.
''The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,'' said the filing, suggesting the Obama administration may appeal the matter again to keep the information secret and block the case from going forward.
Manifestly, the Obama DOJ has one goal and one goal only here: to prevent any judicial ruling as to whether the Bush NSA warrantless eavesdropping program was illegal. And they're engaging in extraordinary efforts to ensure that occurs.
To explain why this behavior is so pernicious, so lawless and so dangerous, I'm going to turn the floor over to a long-time, eloquent critic of Bush's secrecy theories -- who just so happens also to be Obama's soon-to-be-confirmed appointee for Chief of the Office of Legal Counsel, Dawn Johnsen. In March of 2008 -- less than a year ago -- this is what she said about the Bush administration's efforts to conceal its FISA-violating eavesdropping activities:
NYT? What's Bush's Excuse for Keeping Law Violations Secret?
But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?
I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else) -- despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.
Yet here we have the Obama DOJ doing exactly this -- not merely trying desperately to keep the Bush administration's spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power even to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants. As Obama's hand-picked OLC chief put it: "I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret."
The details of this case (which I've recounted in full here) highlight even further how indefensible is the Obama DOJ's conduct. The Bush administration succeeded in blocking all other judicial challenges to its illegal NSA eavesdropping with the Kafkaesque argument that because (a) nobody knows on whom the Bush administration spied without warrants (precisely because eavesdropping without warrants ensures that the targets are concealed from everyone, including even a court) and (b) that information cannot be disclosed to anyone (including courts) because it's a "State Secret," no individual party has "standing" to sue because nobody can prove that they were actually subjected to the illegal eavesdropping (because it was done in the dark).
But this case, from the start, was different. As part of a criminal investigation against the Al-Haramain Islamic Foundation, an Oregon-based charity, the Bush DOJ accidentally turned over to the charity's lawyers a document showing that the Bush NSA eavesdropped without warrants on conversations between the charity and its two lawyers, both U.S. citizens. The charity and its lawyers then sued the Bush administration for illegally eavesdropping on their communications. That document is what distinguished this case from all other NSA cases, because it enables the plaintiffs (the charity and its lawyers) to prove that they were subjected to Bush's illegal spying program and they therefore have standing to sue.
It is that document -- which has been described publicly and which the plaintiffs' lawyers have already seen -- which the Obama DOJ is now desperately attempting to block the court from considering on the grounds that allowing the case to proceed will -- somehow -- harm America's national security. Everyone knows the Bush administration spied on Americans without warrants and in violation of the law. Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on.
Still, there's the Obama administration -- just like the Bush administration -- claiming that we'll all be slaughtered if a court rules on whether the President broke the law. And, as Marcy Wheeler astutely notes, the lawbreaking here is particularly egregious (and certainly criminal) since some of the warrantless eavesdropping here appears to have occurred in March, 2004 -- during the exact period when even the Bush DOJ expressly concluded that the NSA program was so illegal that it refused to certify its legality and top DOJ officials (including John Ashcroft) threatened to resign in protest of its continuation (here's more from Marcy on some key details in this case, and from EFF as well).
Our nation's most transparent administration in history won't bother to explain why they're doing any of this: "A Justice Department spokesman declined to comment." We'll probably have to wait for one of them to gather up enough courage to anonymously whisper their alleged reasons into Marc Ambinder's faithful ear. In the meantime, while we wait for that, what is clear is that the Obama DOJ has undertaken exactly the same mission as the Bush DOJ for years so successfully carried out: namely, ensuring that Presidents remain above the law by invoking patently absurd claims of secrecy to argue that our National Security cannot withstand judicial rulings on whether the President's actions were, in fact, illegal.
I’m not outraged by Bush trying to protect us through evesdropping. That’s PERFECTLY LEGAL.
Bambi wants this because he wants to be able to spy on us or on the very people who are opposed to one of his stealth programs, Islamism. He wants to keep it going because no orders will be given for suveillance of Islamists...but a heck of a lot of surveillance of Americans will just slip right into that slot.
My thoughts exactly
At the moment I'm outraged at this puke at Salon who thinks it would be neat to make such activity against the law ~ anyone got his name, address, phone number so I can track him down.......
An illustration of why it’s giving the FedGov too much power when it’s “on your side” - because A) someday it will be on the other guy’s side; and B) it’s never on your side.
Obama is too stupid a man to be that devious.
Yeah, so dangerous every terrorist attack on American soil since 9-11 has been stopped. How dangerous!
>>>>> Bush’s NSA warrantless eavesdropping program <<<<<<
The “warrantless eavesdropping program” is a liberal/socialist myth.
No such thing ever occurred, and there has never been even a single credible assertion that it did.
He’s stupid, but some of the people behind him aren’t. They’re all fanatical and ruthless, though.
I can't think of a single person who's shown up in his inner-circle who was noteworthy for anything useful.
Even his buddy William Ayers was a failure as a mad-bomber ~ ended up killing his girlfriend AND his boyfriend ~ which is really hard to top in a race for the bottom rung in that sort of life.
Spot on they write the plans ohbama just reads them he is far to dumb to think of anything on his own.
The Dems have been successful in getting the United States of Alzheimers people to look back at post-911 events rather than recalling the information we had at the time, how we felt, what it was like, and what we anticipated our likely threats were. Without looking forward through the lens of 911, much of what the Dems allege looks accurate.
Bush prevented further attacks. In the absence of such attacks, the measures taken seem extra-legal. But it was precisely those measures that produced the lack of attacks.
The Dems have been successful in getting the United States of Alzheimers people to look back at post-911 events rather than recalling the information we had at the time, how we felt, what it was like, and what we anticipated our likely threats were. Without looking forward through the lens of 911, much of what the Dems allege looks accurate.
Bush prevented further attacks. In the absence of such attacks, the measures taken seem extra-legal. But it was precisely those measures that produced the lack of attacks.
An illustration of why it’s giving the FedGov too much power when it’s “on your side” - because A) someday it will be on the other guy’s side; and B) it’s never on your side.
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One can almost hear the “Bwah-ha-ha!” as the 0 wrings his hands in anticipation.
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