Obama Administration Using State's Secret Privilege to Protect Illegal Surveillance Program

I think it has become an accepted fact now among privacy advocates and civil libertarians that President Obama has been a grave disappointment on a whole host of issues. This disappointment is not based on some impossible or unrealistic ideal placed upon him.

I'm talking about a now series of positions (and aggressive actions) taken by the Administration that are the absolute opposite of those the President so eloquently and forcefully took as a Senator and candidate be it preventive detention, warrantless wiretapping, the states secrets privilege, and others.

The Administration's recent, and radical interpretation and use of the "state secrets" privilege to block courts from ruling on the legality of the government's domestic surveillance activities only serves to reinforce this feeling of betrayal.

Let's consider the context too: it was just six weeks ago that the DOJ announced voluntary new internal guidelines which, it insisted, would prevent abuses of the state secrets privilege.

Yet here we are with the DOJ embracing Bush "state secrets" theories for the sole purpose - in this particular case - of protecting those that committed crimes that the President vehemently criticized as a Senator and promised to address as a candidate.

Worse, if the Administration is successful in broadening the scope of this "privilege", the Executive Branch will become even more powerful and unaccountable than it already is - serving to validate and reinforce Vice President Cheney's "unitary executive" theory that gained such traction during the Bush years.

Do we really want our Presidents shielded from judicial review or accountability when he/she is accused of breaking the law? Should entire cases be thrown out simply because the Executive Branch claims that there is something in some document that is so secret it will threaten our national security?

It's not as if this latest Administration interpretation of the state secrets privilege should be a surprise to any of us. As a New York Times Editorial noted just five weeks ago (and that I posted about on this blog):

...Attorney General Eric Holder Jr. issued new guidelines for invoking the state secrets privilege in the future. They were a positive step forward, on paper, but did not go nearly far enough. Mr. Holder’s much-anticipated reform plan does not include any shift in the Obama administration’s demand for blanket secrecy in pending cases. Nor does it include support for legislation that would mandate thorough court review of state secrets claims made by the executive branch.

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In any event, while more stringent self-policing of executive branch secrecy claims is welcome, it is hardly a total fix. Senator Russ Feingold, a Wisconsin Democrat, noted that without a clear, permanent mandate for independent court review of the administration’s judgment calls, Mr. Holder’s policy “still amounts to an approach of ‘just trust us.’”

If the Obama team is sincere about wanting to end state secrets abuses, it will support the State Secrets Protection Act sponsored in the Senate by Patrick Leahy, the Judiciary Committee chairman, and in the House by Representative Jerrold Nadler, a Democrat of New York. The measure contains safeguards to ensure protection of legitimate secrets. But before ruling on a secrets claim, and possibly dismissing a lawsuit, judges would be required to review the documents or evidence in question instead of just accepting assertions in government affidavits.

I suppose we can take some solace that there's also a bill recently introduced by Democrats Chris Dodd (D-CT), Patrick Leahy (D-VT), Russ Feingold (D-WI), and Jeff Merkley (D-OR), which, if passed, would repeal the legal immunity afforded the telecommunications industry for their participation in President Bush's warrantless wiretapping program.

The Obama Administration, as alluded to, has remained mum on both of these bills, each of which are identical to the positions taken by him as both a Senator and Candidate. Of course, not taking an official position on these bills does not indicate neutrality. It doesn't take a rocket scientist to deduce - and thus the Democrats in Congress have received the message loud and clear - that the Administration is very much against both reforms.

Now let me get to Salon.com's Glenn Greenwald - my most reliable source of analysis, insight, and expertise on all kinds of critical issues - most notably those related to privacy and the Constitution.

Before I get to his article, check out the interview he did with Bill Moyers last Friday in which he discusses government war propaganda, preventive detention, the freedom of information act, the states secret privilege and much more:










Now here's his article on the latest Administration efforts to protect Bush Administration surveillance activities. He writes:

The case of Shubert v. Bush is one of several litigations challenging the legality of the NSA program, of which the Electronic Frontier Foundation is lead coordinating counsel. The Shubert plaintiffs are numerous American citizens suing individual Bush officials, alleging that the Bush administration instituted a massive "dragnet" surveillance program whereby "the NSA intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government" and that "the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant" (page 4). The lawsuit's central allegation is that the officials responsible for this program violated the Fourth Amendment and FISA and can be held accountable under the law for those illegal actions.

Rather than respond to the substance of the allegations, the Obama DOJ is instead insisting that courts are barred from considering the claims at all. Why? Because -- it asserted in a Motion to Dismiss it filed on Friday -- to allow the lawsuit to proceed under any circumstances -- no matter the safeguards imposed or specific documents excluded -- "would require the disclosure of highly classified NSA sources and methods about the TSP [Terrorist Surveillance Program] and other NSA activities" (page 8). According to the Obama administration, what were once leading examples of Bush's lawlessness and contempt for the Constitution -- namely, his illegal, warrantless domestic spying programs -- are now vital "state secrets" in America's War on Terror, such that courts are prohibited even from considering whether the Government was engaging in crimes when spying on Americans.

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If the President can simply use "secrecy" claims to block courts from ruling on whether he broke the law, then what checks or limits exist on the President's power to spy illegally on Americans or commit other crimes in a classified setting? By definition, there are none. That's what made this distortion of the "state secrets" privilege so dangerous when Bush used it, and it's what makes it so dangerous now.

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Yet here is Obama doing exactly the opposite of those claims and assurances: namely, he's now (a) seeking to immunize not only telecoms, but also Bush officials, from judicial review; (b) demanding that courts be barred from considering the legality of NSA surveillance programs under any circumstances; and (c) attempting to institutionalize the broadest claims of presidential immunity imaginable via radically broad secrecy claims. To do so, he's violating virtually everything he ever said about such matters when he was Senator Obama and Candidate Obama. And he's relying on the very same theories of executive immunity and secrecy that -- under a Republican President -- sparked so much purported outrage. If nothing else, this latest episode underscores the ongoing need for Congressional Democrats to proceed with proposed legislation to impose meaningful limits and oversight on the President's ability to use this power, as this President, just like the last one, has left no doubt about his willingness to abuse it for ignoble ends.

Click here to read the article in its entirety.

And just a quick note on the actual efficacy of such warrantless wiretapping: NOT ONE instance could be cited in a recent Inspector General report that the wiretapping program prevented any attack of any kind, ever. Nor did it lead to the capture of any terrorists.

In light of these facts, one would think that the Obama Administration would come down somewhere at least close to the position that candidate Obama espoused on the campaign trail. Sadly, the opposite has been true.

I'll be back with updates on this case and the legislation in Congress.