Tuesday, November 03, 2009

Back to the real world, Part 5 (cont.)

Subtitled "There, I've Said It Again." In fact, I've said it, by actual count, in 15 different posts since March: In it's approach to presidential powers and secrecy in so-called "national security" (or anything that they can so label) matter, the Obama administration is all but indistinguishable from the Shrub gang.

In fact, the day after the election, I said that I suspected one reason for Obama's disgraceful flip-flop on FISA was that he began to contemplate having those same powers himself. In March, I wrote "Is it too soon [to say that Obama is embracing Bush policies]? Nah, it's not. No way." The months since have given me no reason to amend that judgment. Glenn Greenwald brings just the latest example.
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 is Shubert v. Obama, originally Shubert v. Bush, in which the plaintiffs charge that the Bush administration engaged in a massive and illegal "dragnet" surveillance of Americans, one that continues to this day. The Electronic Frontier Foundation is acting as lead counsel.
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.
In response, the Obama crowd invoked the bogus "state secrets privilege," arguing that the case must be thrown out without a hearing because allowing it to proceed would "require" the government to reveal "highly classified NSA sources and methods." The word "must" - as opposed to "should" - was chosen deliberately to reflect to White House's position, because
[a]ccording 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.
The Obama administration is arguing, in essence, that on "national security," the president is above the law - just as the Shrub gang did. That the president can order any conduct, no matter how outrageously and blatantly illegal, and be able to avoid any possible consequences or even examination simply by waving the "secrecy" banner. That is what Obama is advocating. There is no way around this.

The EFF noted that in making the claim, the administration
demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege. ...

EFF was skeptical when the Obama Administration announced in September its new policy on when the Executive Branch would assert the state secrets privilege in litigation. We argued that the Administration's promise of self-restraint was no replacement for Congressional reform of the oft-abused privilege, considering how the new administration had already embraced the Bush Administration's position on warrantless wiretapping and secrecy.... Based on that experience, we feared that the purported change in policy would result in no change at all when it came to lawsuits over the NSA spying program.

Our fears proved to be well-founded....
Greenwald pointed out how none of the excuses previously offered by the Obamabots can fly any longer. First, this was not something done by a Shrub holdover: AttGen Eric Holder said on Friday that he approved of the asserion of the privilege.
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.
A president who is above the law when it comes to "national security." That is what Barack Obama is advocating.

Footnote: In case you're still wondering, two leftover items from September should help put those doubts to rest. The first from September 22:
"There is growing concern that [the] Bagram [detention center in Afghanistan] has become the new Guantánamo – except with hundreds more prisoners, held indefinitely in reportedly harsher conditions, with no access to lawyers or courts," said Melissa Goodman, staff attorney with the ACLU National Security Project, in a media advisory. "Yet the public is still in the dark when it comes to basic facts such as whom our military is holding there, for how long and on what grounds, and the rules that govern their detention, release and treatment. As long as the Bagram prison is shrouded in secrecy, there is no way to know the truth or begin to address the problems that may exist."
So after months of being denied the information, the ACLU has sued the DOD, the DOJ, the State Dept., and the CIA to obtain records on those prisoners.

As a sort of Footnote to the Footnote, back in April, US District Judge John Bates ruled that those prisoners should be provided habeas corpus rights, that is, the right to challenge their detention in a US court - rights which prisoners at Gitmo had obtained. The Obama crowd's answer came on September 15: It filed an appeal with the Court of Appeals in Washington, seeking to have the ruling overturned and claiming what applied to Guantánamo does not apply to Bagram.

The other item is from September 24, when the administration announced it would not seek new legislation authorizing the indefinite detention of terrorism suspects being held without charges at Guantánamo Bay, Cuba - because it decided it didn't need it. The post-9/11 resolution authorizing the use of force against "those nations, organizations, or persons" involved in 9/11 gave the administration all the authority it needs, the White House said.
In concluding that it does not need specific permission from Congress to hold detainees without charges, the Obama administration is adopting one of the arguments advanced by the Bush administration in years of debates about detention policies.
This was despite Obama having said in May that he would not "decide alone" on the matter. Now it's that his pledge to "work with Congress" doesn't mean legislating, it means "consulting" - or, as it's better known, telling a handful of committee chairs "This is what we're going to do."

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