Tuesday, April 7, 2009

Obama Sides with Bush on Wiretapping

In yet another disappointment from the Obama Administration on the issue of executive power and privacy, it has decided to invoke government secrecy in defending the Bush administration's wiretapping program. In this case, the Administration is fighting a lawsuit filed by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.

The Administration's embracing of the abusive and dangerous Bush administration version of the States Secret privilege is deeply disturbing, because it argues that it be used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn't be allowed in a court case - but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security.

As Glenn Greenwald of Salon.com noted:

"That has been the argument of Democrats for quite some time -- as well as civil libertarians such as Russ Feingold and the ACLU, both of whom endorsed that bill: that what was abusive and dangerous about Bush's use of the State Secrets privilege was the preemptive, generalized use of this privilege to force dismissal of entire lawsuits in advance, even where the supposed secret to be concealed was the allegedly criminal activity itself. And that is exactly the usage that the Obama administration is now defending.


What this is clearly about is shielding the U.S. Government and Bush officials from any accountability. Worse, by keeping Bush's secrecy architecture in place, it ensures that any future President -- Obama or any other -- can continue to operate behind an impenetrable wall of secrecy, with no transparency or accountability even for blatantly criminal acts.

Sadly - and fitting a larger pattern now - Obama is once again demonstrating himself to be more "talk" than "walk" on issues related to executive power and privacy.

The San Francisco Chronicle reports:

Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign's "unceasing criticism of Bush-era secrecy and promise for more transparency."

In a 2006 lawsuit, the AT&T plaintiffs accused the company of allowing the National Security Agency to intercept calls and e-mails and inspect records of millions of customers without warrants or evidence of wrongdoing.


Congress passed a new law last summer permitting the surveillance after Bush allowed some court supervision, the extent of which has not been made public. The law also sought to grant immunity to AT&T and other telecommunications companies from suits by customers accusing them of helping the government spy on them.

Nearly 40 such suits from around the nation, all filed after Bush's 2005 disclosure, have been transferred to San Francisco and are pending before Chief U.S. District Judge Vaughn Walker. He is now reviewing a constitutional challenge to last year's immunity law, which the Obama administration is defending.


Like the earlier suit, the September case relies on a former AT&T technician's declaration that he saw equipment installed at the company's San Francisco office to allow NSA agents to copy all incoming e-mails. The plaintiffs' lawyers say the declaration, and public statements by government officials, revealed a "dragnet" surveillance program that indiscriminately scooped up messages and customer records.

So everybody got that? According to the Bush and Obama Administrations, since citizens cannot show their messages were intercepted, they have no right to sue, because all such information is secret. And, disclosure of whether AT&T took part in the program would tip off our enemies, so we can't have that either. How convenient for the Government and their ongoing efforts to cover up gross Constitutional abuses!

By invoking the states secret privilege Obama is invoking the most abusive parts of the Bush theory of justice: namely, that this privilege can be used to block the adjudication of entire cases, and, worse still, can be used to prevent judicial scrutiny even when the alleged government conduct is blatantly illegal.

They're embracing a theory that literally places government officials above the law. Yet, we continue to fill our jails with non-violent drug users and addicts. Anyone else see the hypocrisy and injustice in all this?

Click here to read the rest of the Chronicle article.

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