Tuesday, May 26, 2009

"Showdown" Over Obama's Embracing of "State Secrets" Looming

As I have written before, one of the great disappointments in the Obama Administration to date has been its embracing of a number of core Bush era arguments related to Executive Power - in particular its adoption of the Bush Administration's interpretation of the "State's Secrets Privilege".

Now, to be fair (or at least open minded and hopeful), Obama has recently said that his Administration was "nearing completion of a thorough review" of the way in which Bush and company invoked the state-secrets privilege - asserting that his lawyers would apply a stricter legal test for the kinds of material that can be protected and that the attorney general must personally sign off on any future cases involving the privilege.

Until his actions meet his words, let's remember that the Obama Administration has been utilizing the Bush interpretation of the State Secrets privilege in its opposition to a lawsuit filed by AT&T customers who claim federal agents illegally intercepted their phone calls and gained access to their records.

This expanded interpretation allows the government to conveniently keep from the public critical information related to possibly criminal and unconstitutional abuses of power...while simultaneously stripping "defendants" (i.e. someone we've been torturing without a trial for 5 years) of the right to use such information in their defense against prosecution.

What is so disturbing about the Obama Administration's adoption of the Bush position is that it completely distorts the original purpose of the State Secrets privilege: the government's right to keep secret specific pieces of evidence or documents that directly relate to the case at hand and that demonstrably pose a threat to national security if released.

Now, the Obama Administration and its predecessor, have been using the privilege as a way 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.

No better example of this re-interpretation is the way it has been used to defend Bush and company's warrantless wiretapping program. Thus, rather than embracing transparency and defending privacy, Obama's DOJ has been arguing that under the PATRIOT Act the government shall be entirely unaccountable for surveilling Americans.

To recap: 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! Government officials are not above the law. If we can continue to fill our jails with non-violent drug users and addicts certainly its not too much to ask that those responsible for breaking the law and subverting the Constitution must also be accountable to the people.

As Glenn Greenwald of Salon.com noted a few months back:

"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.

With all that said, this was welcomed news. The Washington Post reports:

President Obama vowed last week to rein in the use of a legal privilege that allows the administration to discard lawsuits that involve "state secrets," promising that a new policy is in the works that will quell criticism by civil libertarians. But hours after Obama's speech laid out a "delicate balance" on national security, his Justice Department was criticized by a federal judge in California overseeing a case that has delved deeper than any other into one of the government's most highly classified data-gathering programs.


A bill moving through the Senate, written by Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), would empower federal judges to review sensitive evidence and test government assertions. Neither the White House nor the Justice Department has taken a position on the legislation.

In the Haramain case, officials at the National Security Agency have determined that attorneys for the charity, who mistakenly received documents reflecting that they may have been the subject of government eavesdropping, do not have a "need to know" about the electronic surveillance program.

That has set Justice Department lawyers who are defending the NSA on a collision course with Walker. Both sides in the case must appear before the judge in San Francisco on June 3 to explain their positions and discuss ways to proceed.

Needless to say, Senator Leahy's bill seems to be a critical restraint on an Executive Branch that continues to expand its power, as well as its apparent assertion that often its abuses and those that carried them out, are somehow "above the law".

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