Published on Saturday, February 28, 2009 by Salon.com

Obama's Efforts to Block a Judicial Ruling on Bush's Illegal Eavesdropping

by Glenn Greenwald

The Obama DOJ's embrace of Bush's state secrets privilege in the Jeppesen (torture/rendition) case generated substantial outrage, and rightly so.  But it's now safe to say that far worse is the Obama DOJ's conduct in the Al-Haramain case -- the only remaining case against the Government with any real chance of resulting in a judicial ruling on the legality of Bush's NSA warrantless eavesdropping program.  Here's the first paragraph from the Wired report on Friday's appellate ruling, which refused the Obama DOJ's request to block a federal court from considering key evidence when deciding whether Bush broke the law in how he spied on Americans:

A federal appeals court dealt a blow to the Obama administration Friday when it refused to block a judge from admitting top secret evidence in a lawsuit weighing whether a U.S. president may bypass Congress, as President George W. Bush did, and establish a program of eavesdropping on Americans without warrants.

And here are the two paragraphs from the AP report:

The Obama administration has lost its argument that a potential threat to national security should stop a lawsuit challenging the government's warrantless wiretapping program. . . .

The Obama administration, like the Bush administration before it, claimed national security would be compromised if a lawsuit brought by the Oregon chapter of the charity, Al-Haramain Islamic Foundation, was allowed to proceed.

Let's just pause for a moment to consider how remarkable those statements are.  One of the worst abuses of the Bush administration was its endless reliance on vast claims of secrecy to ensure that no court could ever rule on the legality of the President's actions.  They would insist that "secrecy" prevented a judicial ruling even when the President's actions were (a) already publicly disclosed in detail and (b) were blatantly criminal -- as is the case with the NSA warrantless eavesdropping program, which The New York Times described on its front page more than three years ago and which a federal statute explicitly criminalized.  Secrecy claims of that sort -- to block judicial review of the President's conduct, i.e., to immunize the President from the rule of law -- provoked endless howls of outrage from Bush critics.

Yet now, the Obama administration is doing exactly the same thing.  Hence, it is accurately deemed "a blow to the Obama administration" that a court might rule on whether George Bush broke the law when eavesdropping on Americans without warrants.  Why is the Obama administration so vested in preventing that from happening, and -- worse still -- in ensuring that Presidents continue to have the power to invoke extremely broad secrecy claims in order to block courts from ruling on allegations that a President has violated the law?

Obama defenders take note:   this is not a case where the Obama DOJ claims more time is needed to decide what to do, nor is it even a case where the Obama DOJ merely passively adopted the Bush DOJ's already filed arguments.  Here, they have done much, much more than that.  Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding -- emergency appeals, requests for stays, and every time they lose, threats of still further appeals, this time to the U.S. Supreme Court. 

During the controversy in the Jeppesen/rendition case, there were actually "defend-Obama-at-all-costs" advocates in the comment section offering the painfully ludicrous excuse that Obama only embraced Bush's State Secrets theory because Obama secretly hoped and expected to lose the case and thus create good judicial precedent.  But in the Al-Haramin case, the Obama DOJ has now lost -- twice -- in their attempts to invoke secrecy to stop this case from proceeding, but they just keep searching for a court to accept their claims:

Yet government lawyers signaled they would continue fighting to keep the information secret, setting up a new showdown between the courts and the White House over national security. . . .

[H]ours after the appeals court made its decision, government lawyers filed new papers insisting they still did not have to turn over any sensitive information.

''The government respectfully requests that the court refrain from further actions to provide plaintiffs with access to classified information,'' said the filing, suggesting the Obama administration may appeal the matter again to keep the information secret and block the case from going forward.

Manifestly, the Obama DOJ has one goal and one goal only here:  to prevent any judicial ruling as to whether the Bush NSA warrantless eavesdropping program was illegal.  And they're engaging in extraordinary efforts to ensure that occurs.

To explain why this behavior is so pernicious, so lawless and so dangerous, I'm going to turn the floor over to a long-time, eloquent critic of Bush's secrecy theories -- who just so happens also to be Obama's soon-to-be-confirmed appointee for Chief of the Office of Legal Counsel, Dawn Johnsen.  In March of 2008 -- less than a year ago -- this is what she said about the Bush administration's efforts to conceal its FISA-violating eavesdropping activities:

NYT? What's Bush's Excuse for Keeping Law Violations Secret?

But I think we do have to name the even more fundamental question: whether the Bush administration itself acted responsibly in keeping secret that same story. What was its legitimate justification in the first place for misleading the NYT into keeping that information secret for more than a year?

I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes (and yes, I realize they claim not to be violating statutes) came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance or illegal interrogations (and who knows what else) -- despite Congress's failed efforts to get to the bottom of it. Congress instead resorted to enacting new legislation on both issues largely in the dark.

Yet here we have the Obama DOJ doing exactly this -- not merely trying desperately to keep the Bush administration's spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power even to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants.  As Obama's hand-picked OLC chief put it:  "I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret."

The details of this case (which I've recounted in full here) highlight even further how indefensible is the Obama DOJ's conduct.  The Bush administration succeeded in blocking all other judicial challenges to its illegal NSA eavesdropping with the Kafkaesque argument that because (a) nobody knows on whom the Bush administration spied without warrants (precisely because eavesdropping without warrants ensures that the targets are concealed from everyone, including even a court) and (b) that information cannot be disclosed to anyone (including courts) because it's a "State Secret," no individual party has "standing" to sue because nobody can prove that they were actually subjected to the illegal eavesdropping (because it was done in the dark). 

But this case, from the start, was different.  As part of a criminal investigation against the Al-Haramain Islamic Foundation, an Oregon-based charity, the Bush DOJ accidentally turned over to the charity's lawyers a document showing that the Bush NSA eavesdropped without warrants on conversations between the charity and its two lawyers, both U.S. citizens.  The charity and its lawyers then sued the Bush administration for illegally eavesdropping on their communications.  That document is what distinguished this case from all other NSA cases, because it enables the plaintiffs (the charity and its lawyers) to prove that they were subjected to Bush's illegal spying program and they therefore have standing to sue. 

It is that document -- which has been described publicly and which the plaintiffs' lawyers have already seen -- which the Obama DOJ is now desperately attempting to block the court from considering on the grounds that allowing the case to proceed will -- somehow -- harm America's national security.  Everyone knows the Bush administration spied on Americans without warrants and in violation of the law.  Everyone knows that this document reflects that these plaintiffs were among those who were illegally spied on.  

Still, there's the Obama administration -- just like the Bush administration -- claiming that we'll all be slaughtered if a court rules on whether the President broke the law.  And, as Marcy Wheeler astutely notes, the lawbreaking here is particularly egregious (and certainly criminal) since some of the warrantless eavesdropping here appears to have occurred in March, 2004 -- during the exact period when even the Bush DOJ expressly concluded that the NSA program was so illegal that it refused to certify its legality and top DOJ officials (including John Ashcroft) threatened to resign in protest of its continuation (here's more from Marcy on some key details in this case, and from EFF as well).

Our nation's most transparent administration in history won't bother to explain why they're doing any of this: "A Justice Department spokesman declined to comment."  We'll probably have to wait for one of them to gather up enough courage to anonymously whisper their alleged reasons into Marc Ambinder's faithful ear.  In the meantime, while we wait for that, what is clear is that the Obama DOJ has undertaken exactly the same mission as the Bush DOJ for years so successfully carried out:  namely, ensuring that Presidents remain above the law by invoking patently absurd claims of secrecy to argue that our National Security cannot withstand judicial rulings on whether the President's actions were, in fact, illegal.

* * * * * 

On a related note:  last week, I interviewed the ACLU's Jonathan Hafetz about the Obama administration's March 23 deadline to file a Supreme Court brief in the Al-Marri case, brought by the last person still being held on U.S. soil as an "enemy combatant."  In 2003, Al-Marri (Hafetz's client), who was in the U.S. legally on a student visa, was about to be tried on various criminal charges when, at the last minute, Bush declared him an "enemy combatant" and ordered him transferred to a military brig, where he has remained ever since with no charges and no trial.  In his case, the Fourth Circuit's Court of Appeals last year largely upheld the power of the President to imprison legal residents (and even U.S. citizens) on U.S. soil in military prison with no criminal charges, and the U.S. Supreme Court had agreed to review that decision.

This week, the Obama DOJ filed criminal charges against Al-Marri, so he will now be transferred back to the civilian court system and have what the U.S. Constitution clearly mandates:  a full trial and due process.  For Al-Marri, that is a positive step:  now, he'll only remain in prison if he's convicted of a crime in a real court and (presumably) will be freed if he's acquitted.  That's how our system is supposed to work.

But whether this is a positive step in a general sense is a different question.  In the Jose Padilla case, the Bush administration kept a U.S. citizen in a cage for many years without charges of any kind, and then suddenly filed criminal charges against him right as the Supreme Court was set to rule on the constitutionality of imprisoning U.S. citizens as "enemy combatants" with no trial.  Once they finally indicted Padilla, the Bush administration ran and argued that the indictment rendered the questions before the Court moot.  The Supreme Court, in essence, agreed and refused to hear the appeal, thus leaving in place the Fourth Circuit's affirmation that the President has this power. 

If that is what the Obama DOJ does here -- namely, if it succeeds in its efforts to convince the Supreme Court not to rule on this critical matter because, yet again, the individual who has been encaged for years without charges was, at the last minute, transferred to a civilian court (thus leaving standing the Fourth Circuit's horrendous ruling) -- that will be destructive for all the reasons that Bush critics cited when the same thing was done in the Padilla case.

The Obama DOJ deserves some limited credit for indicting Al-Marri and thus refusing to continue to imprison him with no charges.  It's certainly not Obama's fault that Al-Marri was imprisoned for years with no charges, and the only fair option was to do what they did:  give him a real trial.  But if this indictment results in the preservation of the President's power in the future to similarly detain people without charges -- because of the Obama DOJ's efforts to block the Supreme Court from ruling on this question -- then it is worthy of criticisms for the same reasons it was in the Padilla case.  

Ultimately, the real question is not whether you think Obama will use these powers the same way Bush did (nobody can know that), but rather:   do you want the secrecy and detention architecture built by George Bush, Dick Cheney and David Addington to remain in place so that -- even if it remains dormant now -- Obama or some future President can decide at any time to revitalize and use it at will?  Thus far, Obama's answer to that question seems to be a resounding "yes."

 

UPDATE:   I spoke to the annual conference of the ACLU of Massachusetts last month regarding impediments to the restoration of civil liberties under the Obama administration.  I posted the link at the end of yesterday's post, but since that was at the end of the day, and since the speech relates directly to the topic here, I'll post it again for those interested:  the 30-minute speech can be heard on MP3 here and is also available on ITunes here (the video of the speech may or may not be posted at some point in the future).