Obama's Latest Use of 'Secrecy' to Shield Presidential Lawbreaking

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.

In the case of Shubert v. Bush, the Electronic Frontier Foundation represents 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 EFF put it last July (emphasis in original), government officials:

seek
to transform a limited, common law evidentiary 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 EFF 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 EFF 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. 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.