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Published on Sunday, June 21, 2009 by the McClatchy Newspapers

In Stark Legal Turnaround, Obama Now Resembles Bush

by Michael Doyle

WASHINGTON - President Barack Obama is morphing into George W. Bush, as administration attorneys repeatedly adopt the executive-authority and national-security rationales that their Republican predecessors preferred.

In courtroom battles and freedom-of-information fights from Washington, D.C., to California, Obama's legal arguments repeatedly mirror Bush's: White House turf is to be protected, secrets must be retained and dire warnings are wielded as weapons.

"It's putting up a veritable wall around the White House, and it's so at odds with Obama's campaign commitment to more open government," said Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington, a legal watchdog group.

Certainly, some differences exist.

The Obama administration, for instance, has released documents on global warming from the Council on Environmental Quality that the Bush administration sought to suppress. Some questions, such as access to White House visitor logs, remain a work in progress.

On policies that are at the heart of presidential power and prerogatives, however, this administration's legal arguments have blended into the other. The persistence can reflect everything from institutional momentum and a quest for continuity to the clout of career employees.

"There is no question that there are (durable) cultures and mindsets in agencies," Weismann acknowledged.

A courtroom clash Thursday illustrated how Obama has come to emulate Bush.

Weismann's organization sued last year to obtain the notes from an interview that the FBI conducted with then-Vice President Dick Cheney. The interview was part of an investigation into leaks concerning undercover CIA officer Valerie Plame, and the Bush administration vigorously fought the release of the notes.

"The records contain descriptions of confidential deliberations among top White House officials which are protected by the deliberative process and presidential communications privileges," Bush's Justice Department argued in an Oct. 10, 2008, legal brief.

Obama's Justice Department held the same line Thursday.

"The new leadership of the department supports those arguments," Justice Department attorney Jeffrey Smith told U.S. District Judge Emmet Sullivan during the oral argument. "The Department of Justice is an ongoing entity, and it is not normal for us to update cases simply because we have a new attorney general."

Perspectives, of course, often change once candidates assume responsibility upon taking office. As a candidate, for instance, Obama opposed the Defense of Marriage Act, which defines marriage as between a man and a woman.

As president, however, he's following Bush's lead in defending in court the federal marriage law, which a California same-sex couple is challenging.

The law "reflects a cautiously limited response to society's still-evolving understanding of the institution of marriage," Assistant Attorney General Tony West declared in a legal filing June 11.

Legally speaking, every administration inherits lawsuits filed against its predecessor. The Solicitor General's Office, which represents the government in appeals, traditionally tries to hold a steady course. Personnel, too, stick around. John Brennan, the CIA director's chief of staff during the Bush administration, is now closely advising Obama as a senior National Security Council staffer.

Whatever the reasons, policy persists.

The Bush White House sought to keep e-mails secret. The Obama White House has followed suit. The Bush White House sought to keep visitor logs secret. The Obama White House, so far, takes the same view.

Petaluma, Calif., resident Carolyn Jewel and the Electronic Frontier Foundation, a legal activist group, sued the Bush administration over warrantless wiretaps. The Bush administration said that the lawsuit endangered national security. The Obama administration now agrees.

"The disclosure of the information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security," Acting Assistant Attorney General Michael F. Hertz declared in a brief April 3.

Similarly, the Bush administration objected to an American Civil Liberties Union request for access to documents that include photographs that reportedly show the abuse of foreign prisoners held by the U.S. military in Iraq and Afghanistan. The Obama administration declared in April that it would release the photographs.

Three weeks later, Obama reversed course and declared that "releasing them, I believe, would be to further inflame anti-American opinion and to put our troops in greater danger." The administration's attorneys followed up with a legal brief, augmented by a 24-page declaration that CIA Director Leon Panetta filed June 9.

"Information containing details of the (interrogation techniques) being applied would provide ready-made ammunition for al Qaida propaganda," Panetta declared. "The resultant damage to the national security would likely be exceptionally grave."

In an interview, ACLU attorney Amrit Singh said that "the trend, as it is now, is disappointing" as Obama follows the Bush lead. The Obama administration now will appeal to the Supreme Court in an effort to keep the photos and related information secret.

On the opposite coast, a similar drama is playing out in a clash over so-called "torture flights."

An ACLU lawsuit, initially filed in U.S. District Court in San Jose, Calif., contends that the Boeing subsidiary Jeppesen DataPlan knowingly supported a CIA operation that flew terrorism suspects to brutal overseas prisons. The Bush administration invoked the "state secrets" privilege in an effort to stop the suit.

"Further litigation of this case would pose an unacceptable risk of disclosure of information that the nation's security requires not be disclosed," the Bush administration declared in a legal filing on Oct. 18, 2007.

The Obama administration now says the same, after a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled April 21 that the case could proceed.

"Permitting this suit to proceed would pose an unacceptable risk to national security," the Obama administration declared in a legal filing June 12.

For both arguments, the two administrations relied on the attestations of the same man: former Bush CIA Director Michael Hayden.

 

© McClatchy Newspapers 2009

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