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On 'State Secrets,' Meet Barack W. Obama

April 10, 2009 9:20 AM

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."

Huh.

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."

DOJ spox Miller 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 Miller: "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

April 10, 2009 | Permalink | Share | User Comments (111)

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"and yet, everyone want's to blame Bush...What the hell was he supposed to believe?? what would you be saying if Bush disregarded all of the above and Saddam had used them? You would crucify him, just like you are now.

I say err on the safe side..."

I agree 100% stop bashing and let's look at the facts of the president we have in office now. You go around holding on to something without questioning it and nothing good will come from it. Knowone is saying hate him, just take the blinders off and keep track, question things. Its okay to like someone and sometimes disagree.

Posted by: Paula | Apr 24, 2009 12:07:36 PM

Why are people surprised? Did anyone who voted for Obama know Obama? No one that I know personally who voted for Obama for president had any idea what he might do. They voted for him based on his Harvard law degree and his rhetoric. They thought McCain and Palin were dumb. They thought Obama was the smartest man in Washington. But no one could tell me what he would do once president based on any track record or past action; nor could they tell me what qualifications he had to tackle our economic crisis or global issues. They just thought he was going to be great. Oh, goody. Now he has proven in only 3 months to be an unmitigated disaster. We have over 3 more years of this. It's only going to get worse. Good luck to us all.

Posted by: JMS2008 | Apr 15, 2009 10:53:55 PM

JFK declared, "The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, secret oaths, and secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it."

I wonder how we should consider Obama's mysterious background, shady associates, and clandestine policy making in light of the above?

As they say, we ultimately receive the very government which we deserve.

Posted by: h5mind | Apr 12, 2009 10:01:26 PM

OBAMA IS TAKING ALL THE HARD DECISIONS AND ACCEPTING ALL THE TOUGH RESPONSIBILITIES WHILST...

I have to admit, whatever you've been having, it must be pretty good. When it wears off, do you sleep for a whole day? Or do you wake up with a throbbing headache?

Posted by: Blacque Jacques Shellacque | Apr 11, 2009 3:17:52 PM

RE:Oliver Nelson's comment: Dude, look me in the nothern gulag before BHO's term is up so we can discuss how everything is gonna be alright with "The One" in charge!

My main issue with the man is his total disregard for the United States Consititution. Thing is he claims to be a constitutional scholar. He also said the constitution is a living breathing document that is not perfect. That sould have SCARED every single registered voter right there!

Posted by: Dan Davidson | Apr 11, 2009 6:40:13 AM

I thought Bush was bad on alot of things, but geez Obama is far far far far worse. He has to go before he buys enough votes with giving the illegal criminals citizenship by the millions and free health care at the cost of the rest of us.

Posted by: PresGov | Apr 11, 2009 6:05:32 AM

THE IRONIC THING ABOUT OBAMA BEING COMMANDER IN CHIEF IS THAT AS A CIVILIAN JOINING THE MILITARY - HE WOULD ONLY BE ABLE TO GET MINIMAL SECURITY CLEARANCE

Posted by: Jimbo | Apr 11, 2009 5:52:26 AM

THIS GUY HAS HIS FINGERS ON "THE FOOTBALL?" TALK ABOUT ANOTHER DISASTER WAITING TO HAPPEN!!!

Posted by: Jimbo | Apr 11, 2009 5:47:58 AM

A multi thousand dollar pizza for Obama - flown in from where? I must have dreamed this.

Posted by: Jimbo | Apr 11, 2009 5:44:57 AM

Shredding the constitution should be automatic impeachment.

Posted by: PresGov | Apr 11, 2009 5:30:54 AM

Obama has already said he doesn't like the constitution for americans.........

Posted by: PresGov | Apr 11, 2009 5:30:26 AM

Obama is a nut, and even worse he is a clueless nut. No backbone and no clue, he has already broken most of his campaign promises and flip flops openingly in the wind.

Posted by: PresGov | Apr 11, 2009 5:29:16 AM

U GUYS ARE REALY HILARIOUS.....OBAMA IS TAKING ALL THE HARD DECISIONS AND ACCEPTING ALL THE TOUGH RESPONSIBILITIES WHILST U SIT ON UR LAZY BOYS AND SPOUT "INFORMED COMMENTARIES" MAYBE IF U SPENT A DAY IN A DEVELOPING COUNTRY WITH CLASSICALLY INEPT LEADERSHIP U WOULD APPRECIATE DAT...GUYS AND GALS IN AMERICA...IF UR NOT HAPPY WITH OBAMA WAIT PATIENTLY FOR HIS TERM TO EXPIRE AND SEND HIM DOWN TO AFRICA TO HELP US FIX THAT CONTINENT...UR WELCOME TO RE-INSTALL BUSH AND HIS CRONIES....TOO MUCH HAMBURGERS AND TABLOID DRIVEN LIFESTYLES GETTING TO UR COLLECTIVE HEADS

Posted by: seye | Apr 11, 2009 4:27:08 AM

So, all you poor silly slobs are confused now that obama has 'grown up' in his presidency and supports state secrets. He is W all over again! Well, more simply, he is now privy to the state secrets and agrees with W. Just as he will close gitmo as he promised you, when he can find another prison for its inmates. Liberals and dems in general are boring, paranoid and just plain wrong in their single-minded blatherings...

Posted by: vic g | Apr 11, 2009 2:46:49 AM

"ALL GOVERNMENT,OF COURSE,IS AGAINST
LIBERTY". H.L. MENCKEN

Posted by: Old Dog | Apr 11, 2009 2:40:48 AM

You can't traverse through Europe, you can only traverse it. Good copy editors are relatively cheap, you know.

Posted by: Sven | Apr 11, 2009 1:31:33 AM

"Nope, the War in Afghanistan has the blessing of the UN and NATO."

Wow, good thing too, because as a sovereign nation, the United States needs the blessing of the UN to go to war, right?

"The illegal war you are thinking of is Iraq which was started based on Bush's lies."

Illegal war? Ok, tell me which laws of the United States were broken by George Bush when he launched the war against Iraq. He received authorization via a vote in Congress to do what he did in Iraq. The notion that this is illegal because the UN didn't give its blessing is just silly nonsense. The United States does not have to clear its actions with the UN.

Bush's lies? Guess you missed the report put forth by the bipartisan commission formed by Congress to investigate such claims. You know, the one that found that Bush in fact didn't lie, rather he placed too much emphasis on intelligence that later was found out to be not accurate. The very same intelligence pretty much every single Western nation agreed at the time was valid. The very same intelligence that members of Congress were privy to before they authorized the action in Iraq.

You can criticize the war in Iraq all you want, but the notion that it is "illegal" because the UN is against it is baloney.

Posted by: Mark | Apr 10, 2009 11:46:15 PM

I gotta tell you, it is absolutely hilarious reading comments by the Obama sycophants claiming that now that a guy with a D behind his name is doing this stuff, it somehow doesn't matter anymore. It is topnotch hypocritical entertainment at its finest. And to make matters worse, Obama wants to vastly expand these programs. Go on Obama drones, keep telling us why it doesn't matter anymore, just like you tried to tell us with signing statements, rendition, earmarks, increased troops in Afghanistan, deficit spending, etc. The hypocrisy would be absolutely hilarious if it weren't so damaging to the country. But as this and other episodes of Obama's hypocrisy prove, the Democrats and those on the left didn't oppose Bush's plans out of principle, it was solely for political gain.

This president has proven himself to be an incompetent fraud whose tendency toward hypocrisy is absolutely staggering. When he is not nominating tax cheats, he is shredding the Constitution.

Posted by: Mark | Apr 10, 2009 11:33:07 PM

If anyone had checked Sen Obama's voting record, you'd know he wasn't around long enough to know the truth about running the government, so when Candidate Obama became President Obama, he was faced with unpleasant realities that didn't match campaign rhetoric. So we ended up with the practices of Bush without the skill of Bush, and no savvy Second in Command worth backing him up. Change for the sake of change is not always healthy. Watch and learn.

Posted by: OldGuy | Apr 10, 2009 10:27:17 PM

Will somebody please tell whomever controls the teleprompter to do what we elected him to do?

His teleprompter is the only thing he listens to!

Posted by: vpritner | Apr 10, 2009 9:50:00 PM

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