Judges, Experts: Obama=Bush…Gibbs: State Secrets Good

From WaPo

SAN FRANCISCO, Aug. 15 — Lawyers for the Bush administration encountered a federal appeals court Wednesday that appeared deeply skeptical of a blanket claim that the government’s surveillance efforts cannot be challenged in court because the litigation might reveal state secrets.

“The bottom line here is the government declares something is a state secret, that’s the end of it. No cases. . . . The king can do no wrong,” said Judge Harry Pregerson, one of three judges from the U.S. Court of Appeals for the 9th Circuit who grilled administration lawyers at length over whether a pair of lawsuits against the government should go forward.

Deputy Solicitor General Gregory G. Garre was forced to mount a public argument that almost nothing about the substance of the government’s conduct could be talked about in court because doing so might expose either the methods used in gathering intelligence or gaps in those methods.

“This seems to put us in the ‘trust us’ category,” Judge M. Margaret McKeown said about the government’s assertions that its surveillance activities did not violate the law. ” ‘We don’t do it. Trust us. And don’t ask us about it.’ “

That is NOT how our democracy works. No matter who is in charge at the moment. Checks and balance, checks and balances, checks and balances. Not “trust.” The Obama Administration has just asserted that there should be no Judicial or Congressional checks and balances on it when it asserts something….anything….is a State Secret.

And lest their be any doubt that this is a rogue operation by Cheney left behinds or Bushie Moles…

Gibbs: Obama Stands By DOJ’s Use Of State Secrets Privilege, by Sam Stein

The President fully supports the Department of Justice’s citing of the state secrets privilege to brush aside lawsuits targeting officials who oversaw warrantless wiretapping, spokesman Robert Gibbs said on Thursday.

“Absolutely, absolutely he does,” Gibbs said, when asked if the president deemed the DOJ’s legal reasoning fair.

Lisa Lockwood has more on Gibbs’ statement here.

On to TPM and the analysis by even more experts in this area. Unlike my friend wmtriallawyer, no offense meant buddy! wmtriallawyer’s diary at Dkos gave his perspective, DOJ and the FISA Lawsuit: The Lawyers are Doing Their Job as a lawyer…which is all well and good, but it did lead people to believe that there was an excuse for this bad policy that continues, if not expands, the Unitary Executive. There are no excuses for this policy.

No matter what Kossaks may wish to believe. You can’t shout down reality. No matter how many Michelle Bachmann-like diaries you write about “Who is a REAL Democrat,” this is bad policy. And all indications are, due to Gibbs statement, that it is permanent policy. So bad that yes, it NEEDS to be compared to Bush’s policies on Executive Privilege. If only to penetrate the fog, let alone on the FACTS that reality based communities are supposed to embrace. Bad government is bad government….no matter who sits in the Oval Office.

From TPM

Expert Consensus: Obama Mimics Bush On State Secrets By Zachary Roth

During the presidential campaign, Obama criticized Bush for being too quick to invoke the state secrets claim. But last Friday, his Justice Department filed a motion in a warrantless wiretapping lawsuit, brought by the digital-rights group EFF. And the Obama-ites took a page out of the Bush DOJ’s playbook by demanding that the suit, Jewel v. NSA, be dismissed entirely under the state secrets privilege, arguing that allowing it go forward would jeopardize national security.

snip…

Not having Greenwald’s training in constitutional law (and perhaps lacking Olbermann’s all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration’s position on the case. Does it represent a continuation of the Bushies’ obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?

In a word, yes.

Ken Gude, an expert in national security law at the Center for American Progress, supported the administration’s invocation of the state secrets claim when it was made earlier this year in an extraordinary rendition case. But its position in Jewel is “disappointing,” Gude told TPMmuckraker, calling himself “frustrated.”

Gude confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions. “They’ve taken the maximalist view that the judge has hardly any role in determining whether national security” would be compromised by the release of classified information,” he said. “There’s going to be people who are very unhappy, and justifiably so.”

He added: “I’m very uncomfortable with the notion that the people who get to decide [whether national security would be jeopardized] is the government.”

There is a good rebuttal argument too, but I am already playing fast and loose with fair use, I hope TPM and By Zachary Roth don’t mind.

Here is the link again so you can asses the rebuttal as well.

But here is the crux of why this is bad policy and an extension of the Unitary Executive powers that we ALL strenuously objected to when it was George Bush claiming them. But that some (not wmtriallawyerin his diary, explicitly btw, but commenters) are now endeavoring to defend…. now that it is Obama’s DOJ that are pressing for greater Presidential/Executive power.

“I’m very uncomfortable with the notion that the people who get to decide [whether national security would be jeopardized] is the government.”

This eliminates the checks and balances of Judicial review.

So in addition to not being able to sue the government for spying on you if they invoke State’s Secrets, they are the only one’s who get to decide if it is a legitimate protection. With a stoke of the Secrets pen, your Fourth Amendment Rights are gone.

Anything they want to claim as a State Secret…..IS a State Secret.

With only the Executive Branch overseeing the Executive Branch….as far as I can tell. Please , please do prove me wrong and provide evidence of Congressional or Judicial oversight on what is deemed to be a State Secret.

That certainly seems to be what the DOJ are saying in their press release…

The administration recognizes that invoking the states secret privilege is a significant step that should be taken only when absolutely necessary. After careful consideration by senior intelligence and Department of Justice officials, it was clear that pursuing this case could unavoidably put at risk the disclosure of sensitive information that would harm national security.

An examination by the Director of National Intelligence and an internal review team established by the Attorney General determined that attempting to address the allegations in this case could require the disclosure of intelligence sources and methods that are used in a lawful manner to protect national security. The administration cannot risk the disclosure of information that could cause such exceptional harm to national security.

While the assertion of states secrets privilege is necessary to protect national security, the intelligence community’s surveillance activities are designed and executed to comply fully with the laws protecting the privacy and civil liberties of Americans. There is a robust oversight system to ensure this compliance.

More on Gibbs statement from Stein..

The DOJ has insisted that lawsuits against government officials involved in the warrantless wiretapping program be dismissed when that any trial could reveal sensitive national security information. During the campaign trail, Obama had criticized the practice of evoking the state secrets privilege as used by the Bush administration. Asked if the president continued to find his predecessor’s use offensive in light of his own use, Gibbs replied, “Yes.”

If all lawsuits against government officials involved in the warrantless wiretapping program are to be dismissed when the trial could reveal sensitive national security information…….

….

That means that the government can spy on you, can spy on everybody.

And all they have to do is say that there are Secret reasons for doing so.

Or that your only redress of that violation of your 4th Amendment Rights….by suing them for it…would reveal anything they consider to be Secret…

Without a protection, without a redress to protect your Right, does that right exist? What redress is their now? The Executive Branch of your government is asserting it’s right to strip the 4th Amendment Rights of whoever they want, if they agree with themselves that it would put them at risk….of exposing what they are doing.

They are asserting that your government can spy on you and there is nothing you can do about it. If they choose to invoke State Secrets.

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But Obama wouldn’t do that! Right? Except that yes, indeed, he is.

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And it looks like Gibbs is saying that this IS policy, not something unique to this case.

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This is bad policy. This policy is as bad as any of George Bush’s policies. Besides torture and illegal invasion, of course.

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As Greenwald put it

The Bush administration’s use of the “state secrets” privilege was the linchpin of its efforts to shield its criminality from judicial review and — as Democrats, progressives and other Bush critics repeatedly argued — was one of the principal prongs of its lawlessness and radicalism.  Yet here is the Obama administration doing exactly the same thing and now admitting that they intend to continue to do so.

He also added an update, with a statement from Senator Russ Feingold:

UPDATE III: Last night (Thursday), Sen. Feingold’s office emailed me a statement from the Senator in which he said:  “I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct.”  He added that “it is clear that there is an urgent need for legislation to give better guidance to the courts on how to handle assertions of the state secrets privilege,” and that he is now working “to pass the State Secrets Protection Act [which I wrote about here] as soon as possible.”   Feingold’s full statement is here.

But if Sen. Feingold and Greenwald are too Left or too “pure” for you here, is Jake Tapper:

Attorney General Eric Holder recently said he was reviewing the way the Bush administration used the “state secrets” argument, but “on the basis of the two, three cases that we’ve had to review so far — I think that the invocation of the doctrine was correct.”

Huh.

That seems a little different from the Obama-Biden campaign website where “The Problem” is described in part as the Bush administration having “invoked a legal tool known as the ‘state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.”

Because that’s just what the Obama administration tried to do.

From the attorneys in the case.

This is a radical assertion that is utterly unprecedented. No one – not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration – has ever interpreted the law this way.

Even Nancy ‘Off the table’ Pelosi joins in!

“So I know the White House wants to protect the prerogatives of the presidency, the executive branch; we — the legislative branch — we all have a responsibility to the constitution.”

“You cannot,” she added, “say that your rights have not been violated if we don’t disclose the information, but it’s okay for us to find it out.”

Here is a handy diary outlining where the deeply un-democratic concept of a “State Secret” comes from…

The “State Secrets” Privilege is a Load of Bunk by Dartagnan

As early as 1953, Attorney General Herbert Brownell told President Eisenhower that classification procedures were “so broadly drawn and loosely administered as to make it possible for government officials to cover up their own mistakes and even their wrongdoing under the guise of protecting national security.”

And finally, from Candidate Obama himself:

When I am president we won’t work in secret to avoid honoring our laws and Constitution, we will be straight with the American people and true to our values,” said Obama.

‘We may hope that our leaders and our government stand up for our ideals, and there are many times in our history when that’s occurred. But when our laws, our leaders or our government are out of alignment with our ideals, then the dissent of ordinary Americans may prove to be one of the truest expression of patriotism.’   Obama