Obama’s Bush league decision

The president's lawyers continue to block access to information that could expose warrantless wiretapping. Is this change we can believe in?

Topics: Department of Justice, Barack Obama

Obama's Bush league decision

Last July and September, I recounted in Salon how, in the case of Al-Haramain Islamic Foundation Inc. v. Bush, where I am one of the plaintiffs’ lawyers, government attorneys for the Bush administration had gone to extreme and even bizarre lengths to prevent the federal courts from determining the legality of President Bush’s warrantless wiretapping program. The government’s problem is a top-secret document that the Treasury Department accidentally disclosed to Al-Haramain, an Islamic charity in Oregon. The Treasury Department was investigating the charity in 2004 for purportedly financing terrorist activities. We believe the document confirms the surveillance of Al-Haramain and two of its lawyers as part of the 2004 investigation, and confirms their standing to sue as victims of the program, and for an adjudication of its illegality.

For three years, the Bush administration attempted to assert the state secrets privilege in an effort to prevent us from using the secret document to establish standing. (The state secrets privilege, which is rooted in a 1953 Supreme Court case, allows the government to squelch civil lawsuits involving classified evidence that is a state or military secret.) On Jan. 5, 2009, United States District Judge Vaughn Walker issued a key ruling in our favor, saying that, upon issuance of top secret security clearances to some of the plaintiffs’ attorneys, we may be given access, under secure conditions, to the secret document as well as other secret material filed by the government in the case, for the purpose of adjudicating standing. After extensive background checks by the FBI, the government granted top secret security clearances to us.

On Jan. 20, Barack Obama became president of the United States. This gave us “hope.” We finally expected to see, in the Justice Department’s handling of the case under Attorney General Eric Holder, some “change we can believe in.” But it hasn’t happened. Incredibly, the Justice Department has continued to assert the state secrets privilege in the Al-Haramain case, even though Judge Walker ruled last July that the privilege does not apply to the case.



Thus, during the first weeks of the Obama administration, the government is continuing to abuse the state secrets privilege in the Al-Haramain case. The Obama administration, while taking a big step this week toward government transparency by releasing some Bush-era secret memos, at the same time seems to be continuing the Bush-era strategy of preventing the courts from passing judgment on Bush’s (well, really Dick Cheney’s) radical theories of presidential power. The case is now called Al-Haramain Islamic Foundation Inc. v. Obama.

On Feb. 27, the 9th Circuit Court of Appeals rejected an emergency request by the Justice Department — that’s Obama’s Justice Department — for an immediate stay of further proceedings before Judge Walker. The 9th Circuit’s ruling allows Judge Walker to give us access to the secret court filings and adjudicate standing. That evening, the government attorneys did something mind-boggling: They informed Judge Walker in a public court filing that if he intends to give us access to the secret filings in the case, the government will “withdraw that information from submission to the Court.” Evidently that means executive branch authorities (who? the FBI? the Army?) will attempt to seize the documents from Judge Walker. That would be a violation of the constitutional separation of powers, unprecedented in this nation’s history. Incredibly, the Obama administration seems to be provoking a separation-of-powers crisis between the executive and judicial branches.

In yet another public filing with Judge Walker on Feb. 27, the government lawyers informed him that the government’s previous secret filings in the Al-Haramain case contain “an inaccuracy” that “cannot be set forth on the public record.” The “inaccuracy” is described only in secret filings accompanying the public filing. It appears that high officials in the Bush administration asserted a falsehood or falsehoods in their previous secret filings with the court, which the Obama administration is attempting to keep secret. What could that “inaccuracy” be? We haven’t a clue, because … it’s a secret!

What on earth is going on here? Have Obama’s people really decided to continue traveling the Bush path of abusing the state secrets privilege — perhaps for reasons of political expediency — or do they just need more time to get up to speed on the Al-Haramain case before they start doing the right thing? We wait to see. And we wait to see how Judge Walker responds to these latest outrages by the Bush — oops, I mean the Obama — administration.

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 22
  • Close
  • Fullscreen
  • Thumbnails

    Once upon a time on the Bowery

    Talking Heads, 1977
    This was their first weekend as a foursome at CBGB’s, after adding Jerry Harrison, before they started recording the LP “Talking Heads: 77.”

    Once upon a time on the Bowery

    Patti Smith, Bowery 1976
    Patti lit up by the Bowery streetlights. I tapped her on the shoulder, asked if I could do a picture, took two shots and everyone went back to what they were doing. 1/4 second at f/5.6 no tripod.

    Once upon a time on the Bowery

    Blondie, 1977
    This was taken at the Punk Magazine Benefit show. According to Chris Stein (seated, on slide guitar), they were playing “Little Red Rooster.”

    Once upon a time on the Bowery

    No Wave Punks, Bowery Summer 1978
    They were sitting just like this when I walked out of CBGB's. Me: “Don’t move” They didn’t. L to R: Harold Paris, Kristian Hoffman, Diego Cortez, Anya Phillips, Lydia Lunch, James Chance, Jim Sclavunos, Bradley Field, Liz Seidman.

    Once upon a time on the Bowery

    Richard Hell + Bob Quine, 1978
    Richard Hell and the Voidoids, playing CBGB's in 1978, with Richard’s peerless guitar player Robert Quine. Sorely missed, Quine died in 2004.

    Once upon a time on the Bowery

    Bathroom, 1977
    This photograph of mine was used to create the “replica” CBGB's bathroom in the Punk Couture show last summer at the Metropolitan Museum of Art. So I got into the Met with a bathroom photo.

    Once upon a time on the Bowery

    Stiv Bators + Divine, 1978
    Stiv Bators, Divine and the Dead Boys at the Blitz Benefit show for injured Dead Boys drummer Johnny Blitz.

    Once upon a time on the Bowery

    Ramones, 1977
    “The kids are all hopped up and ready to go…” View from the unique "side stage" at CBGB's that you had to walk past to get to the basement bathrooms.

    Once upon a time on the Bowery

    Klaus Nomi, Christopher Parker, Jim Jarmusch – Bowery 1978
    Jarmusch was still in film school, Parker was starring in Jim’s first film "Permanent Vacation" and Klaus just appeared out of nowhere.

    Once upon a time on the Bowery

    Hilly Kristal, Bowery 1977
    When I used to show people this picture of owner Hilly Kristal, they would ask me “Why did you photograph that guy? He’s not a punk!” Now they know why. None of these pictures would have existed without Hilly Kristal.

    Once upon a time on the Bowery

    Dictators, Bowery 1976
    Handsome Dick Manitoba of the Dictators with his girlfriend Jody. I took this shot as a thank you for him returning the wallet I’d lost the night before at CBGB's. He doesn’t like that I tell people he returned it with everything in it.

    Once upon a time on the Bowery

    Alex Chilton, Bowery 1977
    We were on the median strip on the Bowery shooting what became a 45 single sleeve for Alex’s “Bangkok.” A drop of rain landed on the camera lens by accident. Definitely a lucky night!

    Once upon a time on the Bowery

    Bowery view, 1977
    The view from across the Bowery in the summer of 1977.

    Once upon a time on the Bowery

    Ramones, 1977 – never before printed
    I loved shooting The Ramones. They would play two sets a night, four nights a week at CBGB's, and I’d be there for all of them. This shot is notable for Johnny playing a Strat, rather than his usual Mosrite. Maybe he’d just broken a string. Love that hair.

    Once upon a time on the Bowery

    Richard Hell, Bowery 1977 – never before printed
    Richard exiting CBGB's with his guitar at 4am, about to step into a Bowery rainstorm. I’ve always printed the shots of him in the rain, but this one is a real standout to me now.

    Once upon a time on the Bowery

    Patti Smith + Ronnie Spector, 1979
    May 24th – Bob Dylan Birthday show – Patti “invited” everyone at that night’s Palladium show on 14th Street down to CBGB's to celebrate Bob Dylan’s birthday. Here, Patti and Ronnie are doing “Be My Baby.”

    Once upon a time on the Bowery

    Legs McNeil, 1977
    Legs, ready for his close-up, near the front door of CBGB's.

    Once upon a time on the Bowery

    Suicide, 1977
    Rev and Alan Vega – I thought Alan was going to hit me with that chain. This was the Punk Magazine Benefit show.

    Once upon a time on the Bowery

    Ian Hunter and Fans, outside bathroom
    I always think of “All the Young Dudes” when I look at this shot. These fans had caught Ian Hunter in the CBGB's basement outside the bathrooms, and I just stepped in to record the moment.

    Once upon a time on the Bowery

    Tommy Ramone, 1977
    Only at CBGB's could I have gotten this shot of Tommy Ramone seen through Johnny Ramones legs.

    Once upon a time on the Bowery

    Bowery 4am, 1977
    End of the night garbage run. Time to go home.

  • Recent Slide Shows

Comments

0 Comments

Comment Preview

Your name will appear as username ( settings | log out )

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>