Obama's latest use of "secrecy" to shield presidential lawbreaking

What was once depicted as a grave act of lawlessness -- Bush's NSA program -- is now deemed a vital state secret.

Published November 1, 2009 10:02AM (EST)

The Obama administration has, yet again, asserted the broadest and most radical version of the "state secrets" privilege -- which previously caused so much controversy and turmoil among loyal Democrats (when used by Bush/Cheney) -- to attempt to block courts from ruling on the legality of the government's domestic surveillance activities.  Obama did so again this past Friday -- just six weeks after the DOJ announced voluntary new internal guidelines which, it insisted, would prevent abuses of the state secrets privilege.  Instead -- as predicted -- the DOJ continues to embrace the very same "state secrets" theories of the Bush administration -- which Democrats generally and Barack Obama specifically once vehemently condemned -- and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law.

The case of Shubert v. Bush is one of several litigations challenging the legality of the NSA program, of which the Electronic Frontier Foundation is lead coordinating counsel. The Shubert plaintiffs are numerous American citizens suing individual Bush officials, alleging that the Bush administration instituted a massive "dragnet" surveillance program whereby "the NSA intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government" and that "the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant" (page 4).  The lawsuit's central allegation is that the officials responsible for this program violated the Fourth Amendment and FISA and can be held accountable under the law for those illegal actions.

Rather than respond to the substance of the allegations, the Obama DOJ is instead insisting that courts are barred from considering the claims at all.  Why?  Because -- it asserted in a Motion to Dismiss it filed on Friday -- to allow the lawsuit to proceed under any circumstances -- no matter the safeguards imposed or specific documents excluded -- "would require the disclosure of highly classified NSA sources and methods about the TSP [Terrorist Surveillance Program] and other NSA activities" (page 8).  According to the Obama administration, what were once leading examples of Bush's lawlessness and contempt for the Constitution -- namely, his illegal, warrantless domestic spying programs -- are now vital "state secrets" in America's War on Terror, such that courts are prohibited even from considering whether the Government was engaging in crimes when spying on Americans.  

That was the principal authoritarian instrument used by Bush/Cheney to shield itself from judicial accountability, and it is now the instrument used by the Obama DOJ to do the same.  Initially, consider this:  if Obama's argument is true -- that national security would be severely damaged from any disclosures about the government's surveillance activities, even when criminal -- doesn't that mean that the Bush administration and its right-wing followers were correct all along when they insisted that The New York Times had damaged American national security by revealing the existence of the illegal NSA program?  Isn't that the logical conclusion from Obama's claim that no court can adjudicate the legality of the program without making us Unsafe?

Beyond that, just consider the broader implications of what is going on here.   Even after they announced their new internal guidelines with great fanfare, the Obama administration is explicitly arguing that the President can break the law with impunity -- can commit crimes -- when it comes to domestic surveillance because our surveillance programs are so secret that national security will be harmed if courts are permitted to adjudicate their legality.  As the plaintiffs' lawyers put it last July (emphasis in original), government officials:

seek to transform a limited, common law evidentiaryprivilege  into sweeping immunity for their own unlawful conduct. . . . [They] would sweep away these vital constitutional principles with the stroke of a declaration, arrogating to themselves the right to immunize any criminal or unconstitutional conduct in the name of national security. . . .

For that reason, as they pointedly noted the last time the Obama DOJ sought to compel dismissal based on this claim:  "defendants' motion is even more frightening than the conduct alleged in the Amended Complaint."  Think about that argument:  the Obama DOJ's secrecy and immunity theories are even more threatening than the illegal domestic spying programs they seek to protect.  Why?  As the plaintiffs explains (click image to enlarge)

Can anyone deny that's true?  If the President can simply use "secrecy" claims to block courts from ruling on whether he broke the law, then what checks or limits exist on the President's power to spy illegally on Americans or commit other crimes in a classified setting?  By definition, there are none.  That's what made this distortion of the "state secrets" privilege so dangerous when Bush used it, and it's what makes it so dangerous now.  Back in April, 2006 -- a mere four months after the illegal NSA program was first revealed, and right after Bush had asserted "state secrets" to block any judicial inquiry into the NSA program -- here is what I wrote about the Bush administration's use of the "state secrets" privilege as a means of blocking entire lawsuits rather than limiting the use of specific classified documents:

[Q]uite unsurprisingly, the Bush administration loves this doctrine, as it is so consistent with its monarchical view of presidential infallibility, and the administration has become the most aggressive and enthusiastic user of this doctrine . . . . As the Chicago Tribune detailed last year, the administration has also used this doctrine repeatedly to obstruct any judicial proceedings designed to investigate its torture and rendition policies, among others . . . . This administration endlessly searches out obscure legal doctrines or new legal theories which have one purpose -- to eradicate limits on presidential power and to increase the President's ability to prevent disclosure of all but the most innocuous and meaningless information.

That was the prevailing, consensus view at the time among Democrats, progressives and civil libertarians regarding Bush's use of the state secrets privilege:  that the privilege was being used to exclude the President from the rule of law by seeking to preclude judicial examination of his conduct.  Plainly, Obama is now doing the same exact thing -- not just to shield domestic surveillance programs from judicial review but also torture and renditions.  Is there any conceivable, rational reason to view this differently?  None that I can see.

Note, too, how this latest episode eviscerates many of the excuses made earlier this year by Obama supporters to justify this conduct.  It was frequently claimed that these arguments were likely asserted by holdover Bush DOJ lawyers without the involvement of Obama officials -- but under the new DOJ guidelines, the Attorney General must personally approve of any state secrets assertions, and Eric Holder himself confirmed in a Press Release on Friday that he did so here.  Alternatively, it was often claimed that Obama was only asserting these Bush-replicating theories because he secretly hoped to lose in court and thus magnanimously gift us with good precedent -- but the Obama administration has repeatedly lost in court on these theories and then engaged in extraordinary efforts to destroy those good precedents, including by inducing the full appellate court to vacate the decisions or even threatening to defy the court orders compelling disclosure.  In light of this behavior, no rational person can continue to maintain those excuses.

Is there any doubt at this point that, as TalkingPointsMemo put it in a headline:  "Obama Mimics Bush on State Secrets"?  Or can anyone dispute what EFF's Kevin Bankston told ABC News after the latest filing from the Obama DOJ:

The Obama administration has essentially adopted the position of the Bush administration in these cases, even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration's abuse of the state secrets privilege.

Extreme secrecy wasn't an ancillary aspect of the progressive critique of Bush/Cheney; it was central, as it was secrecy that enabled all the other abuses.  More to the point, the secrecy claims being asserted here are not merely about hiding illegal government conduct; worse, they are designed to shield executive officials from accountability for lawbreaking.  As the ACLU's Ben Wizner put it about the Obama DOJ's attempt to use the doctrine to bar torture victims from having a day in court:  "This case is not about secrecy. It's about immunity from accountability."  That's what Obama is supporting:  "immunity from accountability."

What makes this most recent episode particularly appalling is that the program which Obama is seeking to protect here -- the illegal Bush/Cheney NSA surveillance scheme -- was once depicted as a grave threat to the Constitution and the ultimate expression of lawlessness.  Yet now, Obama insists that the very same program is such an important "state secret" that no court can even adjudicate whether the law was broken.  When Democrats voted to immunize lawbreaking telecoms last year, they repeatedly justified that by stressing that Bush officials themselves were not immunized and would therefore remain accountable under the law.  Obama himself, when trying to placate angry supporters over his vote for telecom immunity, said this about the bill he supported:

I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.

Yet here is Obama doing exactly the opposite of those claims and assurances:  namely, he's now (a) seeking to immunize not only telecoms, but also Bush officials, from judicial review; (b) demanding that courts be barred from considering the legality of NSA surveillance programs under any circumstances; and (c) attempting to institutionalize the broadest claims of presidential immunity imaginable via radically broad secrecy claims.   To do so, he's violating virtually everything he ever said about such matters when he was Senator Obama and Candidate Obama.  And he's relying on the very same theories of executive immunity and secrecy that -- under a Republican President -- sparked so much purported outrage.  If nothing else, this latest episode underscores the ongoing need for Congressional Democrats to proceed with proposed legislation to impose meaningful limits and oversight on the President's ability to use this power, as this President, just like the last one, has left no doubt about his willingness to abuse it for ignoble ends.

By Glenn Greenwald

Follow Glenn Greenwald on Twitter: @ggreenwald.

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