Legal Commentary

Obama DOJ Signals It Will Continue To Fight For Bush Invocation Of "State Secrets" Privilege

By Big Tent Democrat

Via Greenwald, the Obama Justice Department signals it will go to the Supreme Court to defend the Bush Administration's invocation of the "state secrets" privilege in the Al Haramain warrantless wiretapping case. The AP reports:

The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government's warrantless wiretapping program. A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay in a case involving a defunct Islamic charity.

Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security.

(Emphasis supplied.) Greenwald writes:

One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President's actions. They would insist that "secrecy" prevented a judicial ruling even when the President's actions were (a) already publicly disclosed in detail and (b) were blatantly criminal -- as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized. Secrecy claims of that sort -- to block judicial review of the President's conduct, i.e., to immunize the President from the rule of law -- provoked endless howls of outrage from Bush critics.

Yet now, the Obama administration is doing exactly the same thing. Hence, it is accurately deemed "a blow to the Obama administration" that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants. Why is the Obama administration so vested in preventing that from happening, and -- worse still -- in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?

I have no adequate answers to Glenn's questions. The Obama Administration's behavior on this matter is simply indefensible.

Speaking for me only

Full post as published by TalkLeft on February 28, 2009 (boomark / email).