35 online
 
Most Popular Choices
Share on Facebook 10 Printer Friendly Page More Sharing
Exclusive to OpEd News:
OpEdNews Op Eds    H3'ed 4/13/09

The Bushite Policies of Obama's Department of Justice: I. Illustrated

By       (Page 2 of 3 pages) Become a premium member to see this article and all articles as one long page.   No comments
Follow Me on Twitter     Message Andrew Schmookler
Become a Fan
  (31 fans)
Late Friday, the Obama DOJ actually went the Bush administration one argument further, in a third case. In Jewel 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's Glenn's synopsis of the government argument:

<blockquote>

[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. </blockquote>

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:


<blockquote>
"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."
</blockquote>


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.

*******************

Next Page  1  |  2  |  3

(Note: You can view every article as one long page if you sign up as an Advocate Member, or higher).

Rate It | View Ratings

Andrew Schmookler Social Media Pages: Facebook page url on login Profile not filled in       Twitter page url on login Profile not filled in       Linkedin page url on login Profile not filled in       Instagram page url on login Profile not filled in

Andy Schmookler, an award-winning author, political commentator, radio talk-show host, and teacher, was the Democratic nominee for Congress from Virginia's 6th District. His new book -- written to have an impact on the central political battle of our time -- is (more...)
 
Go To Commenting
The views expressed herein are the sole responsibility of the author and do not necessarily reflect those of this website or its editors.
Follow Me on Twitter     Writers Guidelines

 
Contact AuthorContact Author Contact EditorContact Editor Author PageView Authors' Articles
Support OpEdNews

OpEdNews depends upon can't survive without your help.

If you value this article and the work of OpEdNews, please either Donate or Purchase a premium membership.

STAY IN THE KNOW
If you've enjoyed this, sign up for our daily or weekly newsletter to get lots of great progressive content.
Daily Weekly     OpEd News Newsletter
Name
Email
   (Opens new browser window)
 

Most Popular Articles by this Author:     (View All Most Popular Articles by this Author)

Why Do Conservatives Like Colbert? Article Plus Critique

Mel Gibson's Rant as Profound Clue

To Anti-Obamite Lefties: It Doesn't Matter If You're Right

How Important is the Loss of Friendship?

# 8 Beliefs that Make Liberal America Weak: Barriers to the Source of Moral and Spiritual Passions

Power and Corruption: Just What Is Their Relationship?

To View Comments or Join the Conversation:

Tell A Friend