We're about to discover whether there's any difference between Obama's Justice Department and George W. Bush.
As legal experts mull over the long-term implications of last week's court decision declaring illegal the program of warrantless surveillance by the George W. Bush administration, attention now focuses on whether the Obama Justice Department will appeal the controversial ruling.
If it does, says the California lawyer who won last week's landmark decision, "it will signal that Obama thinks it's OK for him to permanently inherit Bush's legacy of cowboy governance."
On Wednesday, a federal judge ruled that the National Security Agency (NSA) violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain, a now-defunct Islamic charity in Oregon.
Declaring that the plaintiffs had been "subjected to unlawful surveillance," the judge said the government was liable to pay them damages.
The ruling by Judge Vaughn R. Walker, the chief judge of the Federal District Court in San Francisco, rejected the Justice Department's claim - first asserted by the Bush administration and continued under President Obama - that the charity's lawsuit should be dismissed without a ruling on the merits because allowing it to go forward could reveal state secrets.
The judge characterized that expansive use of the so-called state-secrets privilege as amounting to "unfettered executive-branch discretion" that had "obvious potential for governmental abuse and overreaching."
That position, he said, would enable government officials to flout the warrant law, even though Congress had enacted it "specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority."
The Bush administration had claimed that its secret surveillance program was lawful. Under the program, the National Security Agency monitored Americans' international e-mail messages and phone calls without court approval, even though the Foreign Intelligence Surveillance Act, or FISA, required warrants.
The Justice Department said it was reviewing the decision and had made no decision about whether to appeal.
Among legal experts, however, there was little hesitation. Most of those we contacted hailed the decision as the beginning of the end of unfettered use of the state secrets privilege.
Here's what some of them had to say:
Steven Aftergood, head of the government secrecy program of the Federation of American Scientists:
"At least by implication, the ruling means that aspects of President Bush's Terrorist Surveillance Program were illegal. Significantly, that determination was made by a court, based on a private complaint years after the fact, and not through congressional intelligence oversight. While Congress did enact the Foreign Intelligence Surveillance Act of 1978, which was the foundation of the court's ruling, contemporary congressional oversight alone would have left the Al-Haramain violation (and untold others) undiscovered and unpunished.
"The new ruling also leaves the state secrets privilege seemingly tarnished and in disrepute. 'The Government does not rely on an assertion of the [state secrets privilege] to coverup alleged unlawful conduct', government attorneys told the court. But had the Bush and Obama Administrations' use of the privilege prevailed, that is exactly what would have happened-- conduct that has now been found illegal would have been covered up.
"To the extent that there is a legitimate role for a state secrets privilege, the government might now be motivated to bolster the legitimacy of the privilege, perhaps through enactment of the pending State Secrets Protection Act. That bill would, among other things, provide for judicial review and validation of the substance of assertedly privileged evidence.
"Finally, the ruling casts new light retrospectively on the December 2005 New York Times story that exposed the Bush Administration's warrantless surveillance program. A cogent case has been made by Gabriel Schoenfeld (in Commentary Magazine, March 2006, and in his forthcoming book Necessary Secrets) that the Times story violated a statute that clearly prohibits unauthorized disclosure and publication of classified communications intelligence information. But it was the Times story that set the stage for the Al-Haramain lawsuit.
"With a conclusive judicial ruling that the reported surveillance was in significant respects unlawful, the Times' revelation of the classified surveillance program may more readily be seen as supporting and enabling the rule of law, not defying it."
Daphne Eviatar of Human Rights First:
"The Al Haramain case is a great example of why courts shouldn't simply accept the government's claims that turning over information about possible government lawbreaking will endanger state secrets. Judge Walker was able to adjudicate this case without jeopardizing national security in any way.
"At the same time, this case underscores why Congress needs to pass a new law that prevents the government from seeking to dismiss these sorts of cases on "state secrets" grounds. The Obama administration insists that its new procedures for invoking the state secrets privilege are an adequate protection against its abuse. But in this case, the Justice Department once again tried to use the privilege to have a case dismissed that charged that the government had engaged in illegal conduct.
"Judge Walker has just affirmed that the government did indeed break the law by wiretapping an Islamic charity and its lawyers without a warrant. Unfortunately, many judges in other cases have simply accepted the government's 'state secrets' claims without question. Only by passing a new law narrowing the government's ability to invoke the state secrets privilege to dismiss a lawsuit can we be sure that the government isn't using the claim of "state secrets" to shield itself from liability for breaking the law."
Prof. Peter Shane of Ohio State University law school:
"The Al-Haramain case strongly supports the value of enacting a legislative framework for the evaluation of state secrets claims. News stories thus far have generally focused on the unusual circumstances of the case, in which the plaintiffs were able to satisfy the trial judge of both their standing and their entitlement to relief without resorting to classified information.
"An equally important detail, however, is that the Court of Appeals had actually engaged in a confidential review of the classified document asserted to be privileged, and upheld the Government's right to protect the document only after judicial inspection of its contents. This strongly supports the notion that a properly circumscribed state secrets privilege can co-exist with the added protection of judicial review, and that it may be possible to allow national security cases to go forward in certain circumstances without compromising intelligence sources and methods."
Scott Horton, civil rights attorney, lecturer at Columbia University law school and contributing editor to Harper's Magazine:
"The Justice Department has loudly touted its new standards for the invocation of state secrets, in which a large number of high-level employees are involved before a decision is taken to claim it. That's fine and good, but it's strictly a matter of internal administration. And experience with Justice shows that their practice is quite simple: when in doubt claim state secrets.
"When a case will be embarrassing to Justice, claim state secrets to prevent embarrassment. And when a case will implicate the Justice Department in criminal conduct--by all means, claim state secrets. The Al-Haramain case shows, beyond any doubt, that state secrets was invoked to avoid disclosure of official government criminality, which is absolutely forbidden--a point that even Justice acknowledges.
"There is no discernible difference between the Bush and Obama Justice Departments on this point (and I would add that the conduct of the Obama Justice Department cannot be squared with official statements of policy made by President Obama, which suggests that it is still in some measure a rogue Justice Department).
"The Al-Haramain case reflects growing, and appropriate, judicial skepticism about the use of state secrets, and a growing recognition that Justice has made false or at least very tendentious statements to courts in connection with its invocation of state secrets. It also shows that courts can get around state secrets by precluding the use of classified information and instead deciding the matter entirely on the basis of what is not and cannot be classified. And it shows the courts drawing absolutely appropriate adverse inferences from the Justice Department's obsessive use of secrecy. It's a landmark case, and future litigants can find a road map to suing the government over illegal surveillance in it."
And finally, there's Jon Eisenberg, one of the lawyers in the case. Eisenberg says his law firm has done little else in the past four years than attempt to litigate the al Haramain case. He says he has spent much of that time "suspended between rage and disbelief."
He said he could not understand why President Obama seemed "so determined to morph into former president George W. Bush."
He speculated: Perhaps it was believing that he would need Republican votes to complete his legislative agenda and not wishing to alienate the opposition party. Perhaps he did not want to be the chief executive remembered for rolling back executive power. Maybe he believes that taking any other course would leave him and his party vulnerable to charges of being 'soft on terrorism'.
But Eisenberg told us, "Obama needs to understand what a wrong road he has taken vis a vis the Bush Justice Department."
"I think of this situation like the war in Afghanistan. George Bush started it. Obama inherited it. Now it's Obama's war. And Obama just wants it to go away. The current course of justice was charted by George W. Bush. Obama inherited it. If Obama keeps going down the same road as Bush, by appealing this verdict, he will have inherited Bush's whole can of worms. Does Obama really want that to be his legacy?"
The state secrets privilege was once rarely used. But during the George W. Bush administration is was invoked dozens of times in an ongoing effort to keep lawsuits from ever being argued in court.
Even before the election of Barack Obama, Congress began considering legislation that would impose rules governing the use of the state secrets privilege. The State Secrets Protection Act was originally introduced in 2008 by the late Senator Edward M. Kennedy, democrat of Massachusetts, and then-Republican Senator Arlen Specter of Pennsylvania. Sen. Specter has since become a Democrat.
The legislation is now championed by Vermont Democrat Sen. Pat Leahy, chairman of the powerful Senate Judiciary Committee. But its consideration has been stalled because of the crowded calendar caused by the health care debate and other "must pass" legislation.
However, civil liberties advocates continue to try to whip up support for the proposed law. Annie Sovcik, an attorney with advocacy group Human Rights First (HRF), says she is not certain of the effect the court decision will have on the progress of legislation designed to regulate use of the State Secrets Privilege.
But she told us, "Our goal for the moment is to continue to gather co-sponsors, press for a mark-up by the Senate Judiciary Committee, and look for an opportunity to bring the legislation to the floor for an up or down vote."
The Obama administration insists that it is being more cautious than its predecessor in asserting the state secrets privilege, invoking it only when it's "absolutely necessary to protect national security."
But, as the Los Angeles Times points out in an editorial, "There is an easy way for Atty. Gen. Eric H. Holder Jr. to make good on that commitment: He should decline to appeal Walker's ruling."
William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now writes on subjects ranging from human rights to foreign affairs for a number of newspapers and online journals.