Tuesday, April 7, 2009

Keeping the Heat on...Obama

Both Keith Olbermann and Rachel Maddow devoted significant time at the tops of their respective shows for this story, and were highly critical. As Jonathan Turley, a constitutional scholar at Georgetown U., said, what good are constitutional rights if there is no framework to enforce them?

The comments following this story (at the site) are passionate and sometimes enlightening.

Myself...I only hope that the argument put forth that the DOJ is doing its legally-mandated job is the correct one. By that argument, the DOJ must defend the United States' government against any and all lawsuits brought against it to the utmost of its capabilities, and the DOJ (with or without, most likely without, the oversight of Obama himself) is going over the top in its arguments so that no one involved in this case, at any time, can be accused of not doing due diligence. That's a valid argument, especially if Obama's administration has no intent of putting into effect any policies depending on their legal defense. Evidence against this, though, is that Obama has decided to maintain some long-standing "black sites" at which torture is alleged to have occurred. As Turley said on "Countdown," Obama seems to be all about programs, not principles. I don't know if I agree with that 100%, but there's something to it.

I just know that we have to hold the Obama Administration just as culpable as we would the Bush Administration. Yes, the lawsuit against the United States now has Obama's government as defendants, and they must defend themselves vigorously. And yes, it is entirely possible that they are choosing a ridiculously over-the-top defense not only to ensure due diligence but also to throw the case. But if the current DOJ pursues this as a matter of policy, it is our obligation to protest it in every avenue available to us.


(live links at website)

More Immunity Claims on Wiretapping from Obama DOJ by mcjoan

Tue Apr 07, 2009 at 05:02:04 PM PDT
In three separate cases in as many months, the Obama Justice Department has used the same arguments that the Bush administration Justice Department used to attempt to stop judicial review of extraordinary rendition and warrantless wiretapping. In the Mohamed v. Jeppesen extraordinary rendition case, the Obama administration reiterated the Bush administration argument that the case should be dismissed to preserve "states secrets." Likewise, in the Al-Haramain wiretapping case, Obama's DOJ used the arguments of the Bush administration to argue, again, that state secrets should prevent the Al-Haramain case--in which the only secret isn't a secret because it was inadvertently shared with plaintiff's attorneys--from moving forward.

Late Friday, the Obama DOJ actually went the Bush administration one argument further, in a third case. InJewel v. NSA, the Electronic Frontier Foundation is "suing the National Security Agency (NSA) and other government agencies on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records." The Obama administration filed its first response [pdf] to the suit Friday, demanding dismissal of the entire suit.

Just a reminder, as pointed out by Glenn; one of the rationales provided by all of those Senators who supported the FISAAA that granted immunity to the telcos was the the avenue of suing the government was still open. Jello Jay wrote: "If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House's year-long push for blanket immunity covering government officials."

Let's hope that Senator Rockefeller holds that belief when the government is led by his own party. Here'sGlenn's synopsis of the government argument:

[T]he Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

In other words, 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.

There are several notable aspects to what happened here with this new court filing from Obama:

(1) Unlike in the prior cases where the Obama DOJ embraced the Bush theory of state secrets -- in which the Obama DOJ was simply maintaining already-asserted arguments in those lawsuits by the Bush DOJ -- the motion filed on Friday was the first response of any kind to this lawsuit by the Government. Indeed, EFF filed the lawsuit in October but purposely agreed with Bush lawyers to an extension of the time to respond until April, in the hope that by making this Obama's case, and giving his DOJ officials months to consider what to do when first responding, they would receive a different response than the one they would have gotten from the Bush DOJ.

That didn't happen. This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials. Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance. 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.

(2) It is hard to overstate how extremist is the "sovereign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying. As EFF's Kevin Bankston put it:

This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.

Since EFF's lawsuit is the first to sue for actual damages under FISA and the Wiretap Act, it's arguable whether this immunity argument applied to any of the previous lawsuits. What is clear, though, is that the Bush DOJ, in any context, never articulated this bizarre view that all claims of illegal government surveillance are immunized in the absence of "willful disclosure" to the public of the intercepted communications. This is a brand new Obama DOJ invention to blanket themselves (and Bush officials) with extraordinary immunity even when they knowingly break our country's surveillance laws.

It's difficult to read the administration's brief in any other way than a reinforcement--even an inflation of--the unitary executive, or to attribute it to Bush holdovers. This is first of the cases in which the DOJ attorneys aren't carrying over arguments from the previous administration--they are initiating this case. And it appears that the promises of last summer and fall when FISAAA was being argued were pretty damned empty. As EFF points out:

"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."

Judge Walker, the judge also hearing Al-Haramain, has been hostile to these extraordinarily broad claims by the previous government, and will likely be so again. But it seems pretty clear that the Obama administration will appeal this one, if necessary, as far as it has to.