On 'State Secrets,' Meet Barack W. Obama

In February, President Obama's Justice Department quietly argued in a San Francisco court that it was maintaining the same position as President Bush's Justice Department on a case involving detainees trying to sue a private company for its role in their (allegedly) extraordinary renditions.

The Obama administration pushed the status quo administration argument by invoking the "state secrets" argument, also a Bush-era fave.

"It is the policy of this administration to invoke the state secrets privilege only when necessary and in the most appropriate cases," said DOJ spox Matt Miller.

Last week, Team Obama did it again.

And why wouldn't they?

Attorney General Eric Holder recently said he was reviewing the way the Bush administration used the "state secrets" argument, but "on the basis of the two, three cases that we've had to review so far -- I think that the invocation of the doctrine was correct."


That seems a little different from the Obama-Biden campaign website where "The Problem" is described in part as the Bush administration having "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court."

Because that's just what the Obama administration tried to do.

This time the issue was the National Security Agency's warrantless wiretapping program, and whether courts would be able to assess its constitutionality in a case called Jewel v. NSA, where the Electronic Frontier Foundation (EFF) is challenging the NSA surveillance by suing on behalf of AT&T customers whose records may or may not have been caught up in the NSA "dragnet."

Last Friday, while President Obama traversed throughout Europe, his Justice Department sought to have Jewel v. NSA dismissed because "the Court lacks subject matter jurisdiction with respect to plaintiffs’ statutory claims against the United States because Congress has not waived sovereign immunity" and "because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in this case by the state secrets privilege and related statutory privileges."

Argued the Justice Department: Director of National Intelligence Dennis Blair "has once again demonstrated that the disclosure of the information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security."

"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," said EFF Senior Staff Attorney Kevin Bankston . "But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."

This of course is just the latest in Mr. Obama's evolution on the matter. When the question came up last Summer as to whether then-Sen. Obama would support a filibuster of a Foreign Intelligence Surveillance Act bill if it allowed telecommunications firms immunity for cooperating with the NSA program, Sen. Obama's flip on the matter was worthy of an Olympic gold medal.

Obama spox Bill Burton had told Talking Points Memo in October 2007 that "Barack will support a filibuster of any bill that includes retroactive immunity for telecommunications companies."

His office reaffirmed that position in December 2007: “Senator Obama unequivocally opposes giving retroactive immunity to telecommunications companies ... Senator Obama will not be among those voting to end the filibuster.”

But things change. And Mr. Obama voted to end the filibuster.

On June 25, 2008, Mr. Obama said, "It is a close call for me but I think the current legislation with exclusivity provision that says that a president -- whether George Bush, myself or John McCain -- can’t make up rationales for getting around FISA court, can’t suggest that somehow that there is some law that stands above the laws passed by Congress in engaging in warrantless wiretaps. ... The underlying program itself actually is important and useful to American security as long as it has these constraints on them. I thought it was more important for me to go ahead and support this compromise."

White House spox Ben LaBolt says that "the administration recognizes that invoking the states secret privilege is a significant step that should be taken only when absolutely necessary. After careful consideration by senior intelligence and Department of Justice officials, it was clear that pursuing this case could unavoidably put at risk the disclosure of sensitive information that would harm national security."

Continued LaBolt: "An examination by the Director of National Intelligence and an internal review team established by the Attorney General determined that attempting to address the allegations in this case could require the disclosure of intelligence sources and methods that are used in a lawful manner to protect national security. The administration cannot risk the disclosure of information that could cause such exceptional harm to national security."

But there's a new wrinkle to the Obama DOJ argument, critics say.

As Glenn Greenwald wrote in Salon earlier this week , "beyond even the outrageously broad 'state secrets' privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they 'willfully disclose' to the public what they have learned...

"Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of 'state secrets' to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself," Greenwald writes.

-- jpt

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