Monday, March 2, 2009

Wiretapping lawsuit may have its day in court

I think its pretty safe to say that the Obama administrations record on privacy has left much to be desired. This is not to say when it comes to torture, closing Guantanamo, ending the Bush administration's particularly gruesome version of rendition, and giving various prisoners their day in court the administration hasn't taken great strides. Indeed it has.

But issues related to civil liberties and those of privacy are not quite the same. And sadly, the fact the Obama DOJ has embraced Bush's state secrets privilege claim in the the Al-Haramain case demonstrates a clear desire to "protect the privacy" of a criminal government, but says nothing of its desire to protect the privacy of those whose rights have been violated.

This contradiction is displayed for all to see by the administration's attempts to halt a case challenging Bush's program of spying on terrorism suspects without first getting a court order. So, if you are the government or a telecom company your privacy is protected with an iron fist - if you're an American citizen who's privacy has been violated by the Government you're out of luck.

As's Glenn Greenwald notes:

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 this leads me to the Los Angeles Times story on the court's rejection of the DOJ's attempt to protect Bush crimes and undermine the Constitution.

A federal appeals court rejected the Justice Department's bid to halt the lawsuit by a now-defunct Islamic charity over warrantless wiretapping. The failed attempt was the second time this month that Obama officials argued that the presidential "state secrets privilege" trumped federal law in national security matters, a position consistently maintained by President Obama's predecessor. The administration said national security would be compromised if the lawsuit by the Oregon chapter of Al-Haramain Islamic Foundation went forward.


The Obama White House has continued to defend Bush's claims to expanded powers to shield controversial counter-terrorism actions from lawsuits, alarming civil rights advocates who had expected a change in policy with the new president.


The American Civil Liberties Union and other groups have repeatedly attempted to take the government to trial over warrantless wiretapping but have been thwarted by federal court rulings that they lacked standing to sue unless their individual privacy rights had been violated. Of more than 50 challenges to warrantless wiretapping, only in the Al-Haramain case has evidence emerged that names U.S. citizens subjected to surveillance.

The case stems from classified documents that the Bush administration accidentally sent to the charity's Oregon chapter. Lawyers Wendell Belew and Asim Ghafoor, who represented the charity when it was being investigated by the Treasury Department, learned that their attorney-client discussions had been subject to eavesdropping by the National Security Agency.

Click here to read the rest of the LA Times article.

It goes without saying that Obama's support of the Bush administration's go to "secret recrords defense" - one that surely has successfully prevented the myriad of crimes against the constitution kept from seeing the light of day, represents a profound disappointment to all who cherish privacy and hoped the Obama administration represented comprehensive change. On more than one occasion on this very blog I have lambasted the use of secrecy claims by Bush and Co. to block judicial review of the President's conduct on issues related to wiretapping and eavesdropping.

Again, Greenwald asks the key question: Why is the Obama administration so vested 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?


Yet here we have the Obama DOJ...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.

One point I remember making often during the Bush years was that once power is granted to a President, and no adequate punishment or opposition to it rises at that time, it will be very hard for a future President to give that power up. As I read these articles and review this administration's actions in defense of Bush and Co's secrecy claims, I wish I had been wrong.
The good news here is the court at least has rejected the Administration's bid to halt the lawsuit charging that President Bush broke the law by authorizing warrantless spying on terrorism suspects. Perhaps justice still may be served.

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