Is Obama embracing the lawless, omnipotent executive?

To prevent a ruling on whether Bush's NSA program was illegal, the Obama DOJ is on the verge of defying a court order, and justifying its defiance with Cheney/Addington theories of executive power.

Published March 2, 2009 1:45PM (EST)

(updated below - Update II)

As I detailed over the weekend, the Obama administration -- in the case brought by two American lawyers and their charity-client claiming that their conversations were illegally intercepted by the Bush administration -- has announced that it intends to try to appeal, yet again, in order to prevent the court from hearing the lawsuit.  On Friday, the Ninth Circuit Court of Appeals rejected Obama's request to stay the District Judge's Order, which had held that it will review a classified document that the plaintiffs claim proves they were subjected to the illegal eavesdropping (thus conferring standing on the plaintiffs to challenge the legality of Bush's NSA program), and also ordered the Obama administration to provide security clearances to the plaintiffs' lawyers so that they could review the document as well.  The Obama DOJ immediately announced they intend to try to appeal again -- the third time, since Obama's Inauguration, that the Obama DOJ will try to argue before a court that the case should not heard at all.

In the meantime, though, the Obama DOJ is now refusing to comply with the Judge's order, actually arguing to the court that only the President can decide whether classified information can be used in a court proceeding, and that courts have no power to make such decisions.  Here is the remarkable description of Obama's actions by The San Francisco Chronicle's Bob Egelko:

Feds defy judge's order in Islamic group case

A federal appeals court rejected the Obama administration's attempt Friday to stop a judge in San Francisco from reviewing a challenge to the wiretapping program ordered by former President George W. Bush.

Hours later, President Obama's Justice Department filed papers that appeared to defy the judge's order to allow lawyers for an Islamic organization to see a classified surveillance document at the heart of the case.  The department said the judge had no power to enforce such an order.

In the strictest sense, I'm not sure it's fair to say that they've "defied the judge's order" yet (as opposed to urging the Judge one last time not to enforce his own Order on the ground that he lacks the power to do so), but if they haven't yet "defied" the Order, they are extremely close to doing so -- at least as close as the Bush DOJ ever came to explicitly refusing to comply with a Court order.  And it's the theories they're espousing to justify their behavior that's what is most notable here. 

As Marcy Wheeler documents in detail, the Obama DOJ is now spouting the Cheney/Addington view of government in its purest and most radical expression.  Citing lengthy excepts from the Obama DOJ's brief filed on Friday following its loss in the appeals court -- a brief that could easily have been written by John Yoo or David Addington in its distinctly un-American and anti-constitutional theories purporting to vest unchallengeable, unreviewable power in the President -- Wheeler writes:

This whole passage, read in the context of the wholesale rollback on Executive claims to have exclusive control over classified information just reeks of desperation. Not to mention an acceptance of Cheney's contention that we have fewer than one--or even two--branches of government.

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed.  It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding.  From page 5 of the Obama Brief, filed after its loss on Friday:

That's about as clear as it gets.  There is only one branch with the power to decide if these documents can be used in this Article III court proceeding:  The Executive.  What the President decides is final.  His decision is unreviewable.  It's beyond the reach of the law.  No court has the authority to second-guess it or to direct the President to comply with a disclosure order.  That's the mentality -- and even the language -- drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency:

Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

In the context in which Obama is now invoking this theory, think about what it means:  if, as happened here, the President breaks the law, then he can just label the relevant evidence "classified" and refuse to turn it over to a court which is attempting to rule on the legality of the President's actions.  Once the President decrees that a court is barred from reviewing the relevant evidence because the President claims it is "classified," that's the end of that.  It's irrelevant that courts rule that the documents should be usable or even that Congress has created all sorts of mechanisms to enable federal courts to use classified information in judicial proceedings (including specific such procedures for FISA cases).

According to Obama, only the President has the power to decide what is done with classified information, and neither courts nor Congress have any power at all to do anything but politely request that the President change his mind.  Therefore, the President has the unilateral, unchallengeable power to prevent any judicial challenges to his actions by simply declaring that the relevant evidence is a secret and refusing to turn it over to a court, even if ordered to do so.  That's the argument which the Obama DOJ is now aggressively advancing -- all in order to block any judicial adjudication of Bush's now-dormant NSA program.

It was exactly these theories -- and this behavior -- that led to eight years of accusations of an "imperial presidency" and a "lawless administration" and the like.  Anyone remember that?  Yet all throughout the liberal blogosphere -- which, along with civil liberties groups, led the way in protesting these actions when perpetrated by the Bush administration -- one now regularly stumbles into comments like this whenever these issues are raised: 

A unifying belief among liberals (and many principled non-liberals) for the past several years was that Bush's secrecy theories and assertions of unchallengeable executive power were grave and tyrannical threats to liberty.  Now, as of January 20, 2009, in some people's minds, to raise protests about the exact same theories is nothing more than "hysteria," because the Good Leader has secret reasons that he can't and won't share with us that justify everything he's doing for our own good.  We are in the dark about his motives.  And that's how it should be.  

People like that are without question a minority among Bush critics.  I've actually been encouraged -- unsurprisingly so -- to see that most writers, civil liberties groups and liberal bloggers, even on blogs with an intense pro-Obama sentiment, have been every bit as critical of Obama's actions in this regard as they were of George Bush's.  Their consistent and principled advocacy compares extremely favorably to the "limited government" and "federalism" frauds on the Right who spent the 1990s pretending to oppose the Surveillance State and federal government power when a Democrat was in the White House only to reverse themselves completely by cheering on the greatest expansion of presidential power certainly in the last century, along with a wholesale trampling of any federalism principles, merely because it was a Republican at the helm.

It also should be noted that there are actions that Obama has taken that are meaningfully positive and, from a progressive perspective, about as good as can be expected.  Though his stimulus compromise was criticized as inadequate, his budget, health care and other domestic initiatives have won the approval of even his most intellectually honest progressive critics.  Other Obama policies -- the administration's deference to state law allowing the use of medical marijuana, subtle though important shifts in our approach towards Israel, laws abolishing unfair barriers imposed on employment discrimination victims and expanding children's health care coverage -- are all meaningful changes, particularly for those whom those policies directly benefit.  For progressives, it's understandable that none of the criticisms here negates those positives.  They can and should be evaluated separately.

But -- after a few symbolic (and potentially important) decrees in the first week, which I praised at the time -- the Obama administration's approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal.  None of this has anything to do with complaints that he hasn't yet done enough.  It's the opposite:  these are all affirmative, even extraordinary, actions undertaken by the Obama DOJ not merely to copy, but in the Al-Haramain case, virtually to surpass, the worst aspects of the Bush/Cheney/Addington use of extreme secrecy and assertions of unlimited executive power.   Here's what the Jon Eisenberg, the lawyer for Al-Haramain plaintiffs, is quoted as saying in The San Francisco Chronicle article:

The government's temerity in this case has never ceased to amaze me.  What's amazing is that this is the Obama administration now.

The extent to which that bothers someone depends, presumably, on how important they think it is that, even as Obama implements progressive domestic policies, the tyrannical and lawless theories that defined the Bush administration, the so-called "imperial presidency," be renounced.   

* * * * *

On a somewhat related note, Harper's Scott Horton documents what seems clearly to be some outright deceit, if not overt illegality, on the part of the angelic Jack Goldsmith.


UPDATE:  Matt Browner Hamlin, one of the driving forces behind Chris Dodd's civil-liberties-based presidential campaign, adds his thoughts on Obama's conduct in this area thus far.


UPDATE II:  The New York Times hosts a discussion of whether the Obama administration should investigate and prosecute war crimes committed by Bush officials. Amazingly, four of the five contributors point out that our treaty obligations compel meaningful investigations, while the fifth -- the only one to argue against investigations -- simply ignores that point, as anti-investigation advocates almost always do.

By Glenn Greenwald

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