Subscribe to Common Dreams News Updates
Most Popular This Week
Popular content
Today's Top News
Obama Channeling Bush on State Secrets Claim
Like Predecessor, New Justice Dept. Claiming Privilege
Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House.
Former US president George W Bush, seen here on January 20, 2009, shakes hands with US President Barack Obama (R) at Obama's swearing-in ceremony as the 44th US president of the United States. (AFP/File/Robyn Beck) The first signs have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama's Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but also escalated the standoff -- proposing that government lawyers might take classified documents from the court's custody to keep the charity's representatives from reviewing them.
The suit by the al-Haramain Islamic Foundation has proceeded further than any other in challenging the use of warrantless wiretaps, threatening to expose the inner workings of that program. It is the second time the new Justice Department has followed its predecessors in claiming the state-secrets privilege, which would allow the government to exclude evidence in a civil case on grounds that it jeopardizes national security.
Attorneys for al-Haramain are seeking monetary damages from officials at the White House, the National Security Agency, the Treasury Department and the FBI, saying that the government's alleged illegal eavesdropping of the charity's board members and attorneys five years ago violated the charity's rights of due process and freedom of speech. Representatives of the charity, whose U.S. operations have gone out of business, say that its purpose was philanthropic and that authorities have no evidence that it funded terrorism.
U.S. District Judge Vaughn R. Walker in San Francisco has resisted Justice Department attempts to claim the state-secrets privilege, making it one of the only cases to survive such a government challenge. Over the past eight years, authorities successfully invoked that argument dozens of times to prevent civil liberties groups from winning access to highly classified materials on a range of topics, including secret overseas prisons for terrorism suspects and warrantless wiretapping of U.S. citizens.
In his campaign plan to "change Washington," Obama criticized the Bush administration, saying that it had "ignored public disclosure rules" and that it too often invoked the state-secrets privilege, according to his Web site.
Now, Obama's claim of state secrets has prompted criticism.
"There has to be other ways to protect secret information without having to block accountability," said Erwin Chemerinsky, a law professor at the University of California at Irvine. He said that "state secrets" has become a sort of "talismanic phrase" uttered by government officials who want to dispose of inconvenient or troubling challenges to their authority.
Legal scholars say there are legitimate reasons for the state-secrets privilege, pointing out that it may be necessary to keep from disclosing government sources and methods of intelligence gathering. And Justice Department spokesman Matthew Miller countered the criticism, saying that "in just two months, the Justice Department has already moved on a number of fronts to ensure Americans have access to information about their government's actions, and with respect to state secrets, the attorney general has ordered a review of pending cases to ensure the privilege is only invoked when absolutely necessary."
In the al-Haramain case, Obama has not only maintained the Bush administration approach, but the dispute has intensified, with the Justice Department warning that if the judge does not change his mind, authorities could spirit away the top-secret documents.
"Any way you look at it, it's pretty remarkable," said Jon B. Eisenberg, an attorney for al-Haramain. "This is an executive branch threat to exercise control over a judicial branch function."
Walker's ruling, which could come at any time, is unlikely to end the disagreement and, if challenged, could bring the matter before the U.S. Supreme Court for the first time in a generation.
Last month, a bipartisan Senate group, including Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and ranking Republican Arlen Specter (Pa.), introduced legislation that would require judges to look at the classified evidence when the government makes the state-secrets claim, rather than rely only on its account of the sensitivity of the materials.
Leahy noted that the state-secrets privilege effectively bars people who have experienced serious privacy violations or even torture from seeking justice in court. He expressed particular alarm over the case of Khaled al-Masri, a German citizen who said he was kidnapped and held for months in a CIA-run prison where he was tortured. A federal judge dismissed Masri's suit after the CIA director said it would harm national security.
Said Leahy: "For the aggrieved parties, it means that the courthouse doors are closed -- forever -- regardless of the severity of their injury."
Six weeks ago, Attorney General Eric H. Holder Jr. disappointed civil libertarians by invoking the state-secrets claim in a case against a Boeing Co. subsidiary accused of transporting five terrorism suspects to countries where they were tortured.
Three Bush administration lawyers said they were not surprised that the new team had revived at least some of their arguments. Once in office, the lawyers said, White House officials -- regardless of political affiliation -- tend to support assertions of executive power to keep from tying their hands in future disputes.
"If you want to protect state secrets, you've got to have a pretty broad doctrine," said Stewart Baker, a former top lawyer at the Department of Homeland Security and the NSA.
The al-Haramain case began in early 2004 when the FBI quietly executed search warrants at the charity's headquarters in Ashland, Ore. The Treasury Department froze al-Haramain's assets the next day and ultimately concluded that the charity was a terrorist front.
Later, government officials mistakenly sent the charity's attorneys a classified phone surveillance log -- buried in a stack of documents -- suggesting that al-Haramain board members and some of its attorneys had been wiretapped. Soon after the materials were sent, FBI agents raced to collect the sensitive pages.
In 2006, lawyers and charity officials sued the government, pointing to the secret pages as evidence that their phone and e-mail communication had been monitored without court warrants.
Walker, the San Francisco-based judge, found that anecdotal evidence of the eavesdropping program was sufficient and allowed the al-Haramain case to proceed.
In the waning days of the Bush administration, the judge ordered the government to grant security clearances to al-Haramain lawyers, which it did. But Obama's Justice Department lawyers and NSA officials continue to resist the orders to draft a plan for how the case could move forward.
In a Feb. 27 filing, Justice lawyers said the judge lacks authority "to order the government to grant counsel access to classified information when the executive branch has denied them such access."
Both sides await Walker's next step.
"At this point," said Eisenberg, the al-Haramain attorney, "I don't feel like I need to do anything. The outrage speaks for itself."
29 Comments so far
Show AllObama is channeling Bush!? Obama IS Bush.
Exactly, but taller with whiter teeth.....and a better vocabulary. Of course, my parakeet has a better vocabulary than the shrub. Yes, yes, I am still a Bush Basher. If we cannot have JUSTICE for a genocidal sadist, at least I can bash his ass whenever I get a chance.
Actually, he's worse than Bush. He has more intelligence and aplomb needed to hand over total control to the bankers.
None of this should surprise anybody.
As US Senator Obama voted to expand and continue surveillence of US ciiizens.
He IS making good on his promise of CHANGE. He changed the towels in the white house bathrooms.
If Obama wasn't Bush he would have him indicted for war crimes one way or another, but he fools a lot of people because he is the Bush wolf in sheeps clothing!
Oh give me a break! This is ridiculous.
If you can't see the difference between Obama and Bush, or Obama and McCain, then you are insane.
As progressives, this is OUR moment. We have an opportunity here, don't waste it.
Hey Joenohope, now I'm certain that you have been pulling our legs all along! LOL! What a jokester!! And here I thought you were serious all this time.
I read about the obama channeling. my my my . well i guess i better change my taste in music. it appears that we won't get fooled again was a vast error in my thinking. My father told me believe none of what you hear and half of what you see. Well mr. obama I guess father knows best after all and to think I really believed you would make a change only to find out you're already caving in to the very people who have made us the most despised country in the world.Please let me know when the real president is in the building.
And just to add to your disenchantment....right here..in case you missed it
http://www.commondreams.org/view/2009/03/25
They're all cut from the same cloth. They all (dems or repubs) represent the same class interests. To protect themselves from the "meddlesome outsiders" as the Framers referred to the public, its a matter of "national security." Information does get out in time 'though, as for example the Pentagon Papers which blew the entire case for the wars in Indochina wide open. Watergate was finally blown open for the public which ran Nixon out of office in 1974. The FBIs COINTELPRO became public knowledge eventually. Unfortunatley, when it does hit the public domain it is usually too late. Much if not most, of the damage has been done.
"National security" is the catch phrase the administration uses to mean "the war on personal security, regional peace and international justice."
When the government says "national security" they do not mean the average Americans security but in most cases the governments security to hide their nefarious deeds. President Johnson claimed JFK was killed by Oswald yet he locked up most of the pertinent information, in the archives, for 75 years for " national security". If what he said was true what security could he possibly be concerned about, except maybe things like Oswald was connected to the CIA.
And there is more... here is what the BBC left out of the recent Billy Bragg's program on Phil Ochs and all the secret stuff is still censored after all these years..
Maybe you can download my interview with BBC here... if you copy and paste in you browser window.
https://rcpt.yousendit.com/667848921/0d251b88ed53803834cc5531b1f0281d
But maybe this program won't do it, I'll have to make my own MP3 of it. Later
The lead article on Common Dreams just yesterday was, "Veils of secrecy lifting in Washington." There is fuel for Obama's critics and supporters like myself as well. For me, I stay safe with this mantra, "Obama will do much good, and he will fail to do much good." And as always contrast that with the brutal, unprecedented in US history 8 year rape that his election ENDED.
If the veil of secrecy is/will be lifting, let's see how soon they release those 82 some odd videos that show that supposed plane hitting the pentagon.
Your other posting name is "joehope."
Duh.
"When fascism comes to America, it will be wrapped in the flag, carrying a cross."
Sinclair Lewis, "It Cant Happen Here", 1935
Read what azjoe has written about Israel, then see if you think we are the same person.
Hah Hah! You're just too much!! He Hee!
Flight Manifests suggest that there were no arabs on the 4 airliners who crashed on the 9-11 false flag terrorist atacks
9-11 was an inside job. And the neocons official story about 9-11 is a lie, but every media repeated it so american citizens bought it.
Flight manifests are not artistic creations presented in different versions and creatively altered now and again. They are precise documents showing just exactly who is onboard. There were no Arabs listed on any of the 911 flight manifests. Zero. None. Nor were there any Arabs listed on the passenger list that Bush's FBI alleges it recreated from the DNA that it allegedly found in the wreckage of the passenger plane that allegedly hit the Pentagon. Zero. None. Nor were there any pictures of any Arabs taken by any of the omnipresent security videocams at any of the 911 airports. Zero. None. Nor was there any testimony by any metal detector checkpoint personnel explaining how they let through all of those alleged Arabs with all of their alleged hijack gear - guns, knives, bombs, mace, gas masks, navigational equipment. Zero. None.
The first task of Obama shouldve been to investigate the 9-11 event, who and why and who benefited from it, and why did they do it? for what purpose? who was behind 9-11? Israeli Mossad agents? Neocons? etc.
Totally agree...check out Dr. Tom Tvedten's site.....911DVDproject.com..free DVDs and good sources for more info.
Thanx a lot my friend, i dont know how come everybody in USA is so well damned happy and forgot already about 9-11, and i don't understand how come the majority of people out there in this country seem so happy when we are actually at the edge of an economic apocalyse of unspeakable terms.
Well take care, and thanx for link !!
Who forgot 9/11? How can we not be aware of the economic problem we are in? Why do you think people are still protesting the wars and the bailouts?
Do you read the papers or watch TV? Wake up!
"The first signs have come just weeks into the new administration ..."
The author must have forgotten about Obama's FISA vote.
"'This is an executive branch threat to exercise control over a judicial branch function.'"
Most Americans couldn't care less about abstractions such as the separation of powers.
"making it one of the only cases"
This is a common grammatical error that has crept into popular usage that is most annoying, since it generates unnecessary ambiguity. I don't know whether this is the only case or one of a few cases.
It's time journalists learned the meaning of "only", then they might graduate to handling unique.
Obama--Bush in brown-face?
Do you see CD?
DO YOU SEE THE TYPE OF RACISM YOU ARE BREEDING HERE?
screaming into the mirror again joey blowy?
Hey, stop showing photos of George Wanker Bush on CD. Please.
If any doubt:
http://www.washingtonpost.com/wp-dyn/content/article/2009/03/25/AR2009032501862.html?hpid=topnews
FBI Director Asks Lawmakers to Renew Patriot Act Provisions
By Carrie Johnson
Washington Post Staff Writer
Wednesday, March 25, 2009; 1:39 PM
FBI Director Robert S. Mueller III today urged lawmakers to move swiftly to renew intelligence-gathering measures set to expire in December, calling them "exceptional" tools to help protect national security.
Mueller told members of the Senate Judiciary Committee that he hoped that the reauthorization of two provisions contained in the Patriot Act would be far less "controversial" than in previous years. During the Bush administration, the law drove a wedge between investigators seeking to detect terrorist threats and advocates warning that it trampled on Americans' civil liberties.
In response to a question from Sen. Ben Cardin (D-Md.), Mueller said that his agents had used a provision that helped authorities secure access to business records about 220 times between 2004 and 2007. Data for last year was not yet available, Mueller said.
The measure, known as section 215 after its location in the Patriot Act, has been criticized by the American Civil Liberties Union as allegedly violating the First Amendment rights of U.S. citizens. It allows investigators probing terrorism to seek a suspect's records from third parties such as financial services, travel and telephone companies without notifying the suspect.
"It has been exceptionally helpful in our national security investigations," the FBI director said.
Another provision, allowing agents to carry out roving wiretaps of terrorism suspects, was used 147 times, helping to eliminate "an awful lot of paperwork" and to maintain full electronic surveillance of possible threats, Mueller said. In the past, authorities had to seek court approval for each electronic device carried by a suspect, from a cell phone and a blackberry to a home computer. But under Section 206 of the Patriot Act, one court application is enough to cover all of those machines.
The ACLU issued a report earlier this month depicting what it called "widespread abuses" of government authority under the Patriot Act, approved by Congress less than two months after terrorist strikes hit New York and Washington in 2001.
"The Patriot Act has been disastrous for Americans' rights," said Caroline Frederickson, the director of the ACLU's Washington legislative office. "Congress should use this year's Patriot Act reauthorization as an opportunity to reexamine all of our surveillance laws."
Agents' use of Patriot Act and other sensitive investigative tools has been a source of friction between FBI officials and Democratic lawmakers in the past.
Senators this morning asked Mueller anew about guidelines approved by Justice Department leaders in the waning weeks of the Bush administration. The guidelines give agents more power to recruit confidential sources and engage in interviews in which they conceal their identities at earlier stages in a national security investigation, sometimes before they have developed solid evidence of criminal behavior.
Mueller has not yet had a chance to meet with new Justice Department or White House officials regarding their views on the Patriot Act, he said. But at his Senate confirmation hearing in January, Attorney General Eric H. Holder Jr. expressed at least moderate support for renewing the provisions that will sunset in December.
David Kris, an expert on intelligence laws, won unanimous Senate confirmation today as the new leader of the Justice Department's National Security Division. Kris will play an important role in the Patriot Act reauthorization and in supervising the FBI's national security operations.
"It is important that [the Congress] examine more specifics," Cardin told the FBI director this morning. "We want to make sure you have the tools that you need, and that you have appropriate oversight. There may need to be modifications . . . a fine tuning of these provisions to make sure they are effective and used as intended by Congress."