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Not content to leave any doubt that President Obama concurs with the transparently bogus claims being made in the ongoing lawsuit over warrantless wiretapping of American citizens under George W. Bush, the Administration today removed any doubts over their commitment to Bush era secrecy.

Responding to a question at Thursday’s press briefing, White House Press Secretary Robert Gibbs confirmed Obama stands firmly behind a Justice Department pleading filed last week asking the Electronic Freedom Foundation's lawsuit be dismissed.

Glenn Greenwald has blogged frequently on the Administration's continuing efforts to preserve Bush-era secrecy claims, and in fact has claimed the latest filing goes BEYOND the Bush DoJ's claims of sovereign immunity and state secrets:

Every defining attribute of Bush's radical secrecy powers -- every one -- is found here, and in exactly the same tone and with the exact same mindset.  Thus:   how the U.S. government eavesdrops on its citizens is too secret to allow a court to determine its legality.  We must just blindly accept the claims from the President's DNI that we will all be endangered if we allow courts to determine the legality of the President's actions.  Even confirming or denying already publicly known facts -- such as the involvement of the telecoms and the massive data-mining programs -- would be too damaging to national security.  Why?  Because the DNI says so . . . What's being asserted here by the Obama DOJ is the virtually absolute power of presidential secrecy, the right to break the law with no consequences, and immunity from surveillance lawsuits . . .

Obama apologists have come up with elaborate and contrived scenarios to justify the pleading, from it's just the lawyers doing their job to it's a secret plan to make assertions so outrageous they intentionally lose the case.

Alas, Robert Gibb leaves little doubt as to the Obama Administration's belief the American public can't take the truth, as reported here.

George Washington University law professor Orin Kerr seems to demolish the DoJ  argument of sovereign immunity here:

. . . the Justice Department [argues] the statutory claims against the government for the NSA warrantless surveillance program cannot proceed because the causes of action under the Wiretap Act, the Stored Communications Act, and FISA are barred by the doctrine of sovereign immunity . . .

This strikes me as a terrible argument. 18 U.S.C. § 2712 -- titled "Civil actions against the United States" -- is about as clear as you can get on this issue, it seems to me. It states:

   Any person who is aggrieved by any willful violation of this chapter [the Stored Communications Act -- Ed.] or of chapter 119 of this title [the Wiretap Act -- Ed.] or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.

Had Gibbs only held his tongue, at least we could have preserved the illusion of the prospect of greater transparency in government, and the dream of the prosecution of torturers and wiretappers that is clearly mandated in the circumstances.

Originally posted to bobdevo on Fri Apr 10, 2009 at 10:33 AM PDT.

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Comment Preferences

  •  Sigh. (8+ / 0-)

    "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

    by bobdevo on Fri Apr 10, 2009 at 10:34:15 AM PDT

  •  at least it's an encouraging sign (3+ / 0-)
    Recommended by:
    Hawksana, bobdevo, TNThorpe

    that public pressure can bring this story to light and force the administration to clarify its position.

    They may not change their position without further pressure, but at least we know now that they're fully intent on keeping their secrets (and those of the Bush administration).

    "In America, the law is king." --Thomas Paine

    by limpidglass on Fri Apr 10, 2009 at 10:36:09 AM PDT

  •  I am dismayed at the misinformation out there (6+ / 0-)

    Not to say, I'm not disappointed with Obama's decisions in this regard, but let's not conflate the claims equal that Obama is supporting warrantless wiretapping outside of the FISA court and torture, he's just holding the information within (for reasons I cannot fathom).  But I'm not about to equate him with Bush on these issues, simply because there's no evidence to show that he is currently doing either one of those activities.  

  •  Thank you for not calling us Obamabots (2+ / 0-)
    Recommended by:
    bobdevo, Elise

    "Obama apologists" is much more polite.

    "I had seen the universe as it begins for all things. It was, in reality, a child's universe, a tiny and laughing universe." Loren Eiseley

    by cadejo4 on Fri Apr 10, 2009 at 10:48:01 AM PDT

  •  Just to be clear (6+ / 0-)

    Holder has agreed with the secrecy claim on two cases. There is a third coming up (as yet unidentified) that he says he will probably not make the secrecy claim.

    Katie Couric/Eric Holder Interview

    Holder: Well, the - the premise is wrong. I have ordered a review of the state secrets doctrine. All the cases in which - we have invoked that doctrine. I think there are a total of maybe 20 or so, just to make sure that it was properly invoked. And to see, in those cases, where it was properly invoked, if there's a way we can be more surgical, whether there is a way in which we can share more information.

    A report is in the process of being prepared. I'll expect I'll have it in the not too distant future. And my hope is to be able to share the results of that report with the American people. So they'll understand exactly - why we've had to use the state secret - state secrets doctrine in certain cases. And why we - decided not to use it in - in certain other cases.

    Couric: So you think it's appropriate to invoke it at certain times?

    Holder: At certain times. But I want to make sure that we only do it where it's absolutely necessary. I would only apply the doctrine where - national security was at stake, where the lives of the American people were at stake. Where sources and methods used by our intelligence - at - our intelligence assets were used. This is a very transparent administration.

    This is going to be a very transparent Justice Department. But I'm not gonna sacrifice the safety of the American people or our ability to protect - the American homeland. And that is - as I said, first and foremost.

    Couric: Having said that, do you believe the state secrets doctrine was abused by the Bush administration?

    Holder: Well, I'm in the process of looking - that is being reviewed now. And so, I'll see what the result of that - review is. And as I said, try to share the results of that review with the American people.

    Couric: What's your gut though?

    Holder: Well, I don't know. 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. We - we reversed - are in the process of looking at one case. But I think we're likely to reverse it.

    Couric: Later this year, several controversial provisions of the patriot act will expire, including the wire tapping provision. Will the Obama administration seek to continue that policy?

    Holder: I think we're gonna look and see how those policies have been used. And then, make a decisions - based on experience. Talk to agents, talk to civil liberties advocates. See what the results of these policies that were contained in - the patriot act, whether they've been useful, whether or not they need to be reformed in some way. And then, make a determination as to whether or not we'll support their - renewal.

    In the choice between changing ones mind and proving there's no need to do so, most people get busy on the proof.

    by jsfox on Fri Apr 10, 2009 at 11:04:26 AM PDT

    •  Thanks for posting this (2+ / 0-)
      Recommended by:
      bobdevo, freakofsociety

      although Holder sounds far too 'pragmatic' here for my taste.

      •  For instance (2+ / 0-)
        Recommended by:
        bobdevo, freakofsociety

        what to make of pronouncements such as

        But I want to make sure that we only do it where it's absolutely necessary. I would only apply the doctrine where - national security was at stake, where the lives of the American people were at stake.


        See what the results of these policies that were contained in - the patriot act, whether they've been useful, whether or not they need to be reformed in some way. And then, make a determination as to whether or not we'll support their - renewal.

        Who is making theses decisions by which criteria of usefulness or security and why?  Do we not have laws already that define the parameters for this?

    •  And, to be clear there are two central claims (2+ / 0-)
      Recommended by:
      Jules Beaujolais, Lisa Lockwood

      by DoJ both Bush-era and Obama:

      1.  An assertion of sovereign immunity with respect to the United States (as opposed to telcom companies or EMPLOYEES of the US); and
      1.  An assertion of state secrets (a privilege nowhere recognized in either the constitution or statutory language), meaning the evidence necessary to prove the case is too controversial to allow even a Federal court to know what it is.

      Prof. Kerr's assertion 18 U.S.C. § 2712 specificaly grants a cause of action to any person who is aggrieved by any willful violation appears to defeat that branch of the government's argument.

      The state secret argument is more troublesome. Traditionally, and in existing case law - the assertion has been made against specific pieces of evidence as they were proffered.  The Bush (and now Obama ) argument is the evidence is so secret that once the Director of National Intelligence makes a blanket assertion against virtually ALL of the evidence, that the courts do not have the right to see the evidence to evaluate the assertion of state secret.

      And that, my dear and fellow Kossacks, is a prescription for dictatorial power.

      "we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex" Dwight D. Eisenhower

      by bobdevo on Fri Apr 10, 2009 at 11:16:21 AM PDT

      [ Parent ]

  •  The idea that American courts cannot (5+ / 0-)

    handle procedures to introduce sensitive material is itself wholly wrong.

    The idea that the cases in which the sovereign immunity claims are being made pose a threat to national security is itself wrong.

    Bush grossly abused this legal strategy to cover up his abuse of the Constitution. By adopting this strategy, Obama's DOJ suggests that Bush's action had some merit. They do not.

    This assertion of prerogative based on spurious claims to protect national security provides the basis for further limitations of personal liberty, limitations that may well occur without anyone being able to bring the violators to account.

    Obama campaigned against this and his reversal is deeply disappointing.

    "I still hope we can do better than the Japanese did, but it's not at all obvious that we will." Paul Krugman

    by TNThorpe on Fri Apr 10, 2009 at 11:13:50 AM PDT

  •  if there is one thing our democracy is (1+ / 0-)
    Recommended by:

    crying out for, it's more government secrecy

    The champion of dance, my moves would put you in a trance, and I never leave the disco alone

    by memofromturner on Fri Apr 10, 2009 at 11:42:22 AM PDT

  •  You and other diarists of your ilk (0+ / 0-)

    are just trolls who were hoping Eric Holder would be naive and compromise American security so that the republicans can roast him  over hot coals. He is proving to be a smart and experienced lawyer with integrity and intelligence. I am very happy he is not going to be swayed by false outrages from single issue emotionalists; Just as Geithner is proving to be smart and determined in the face of attempts to scare him into making childish mistakes with the biggest economy on earth. More grease to Obama's elbows (as they say in Nigeria) as he sticks to his guns and backs his leiutenants. That's the hallmark of a great President. I am going to enjoy the growing discomfort of the poutrage club as Obama goes right ahead and runs the government without asking them for their permission.

  •  Yes we get what Greenwald said (1+ / 0-)
    Recommended by:

    Geez louise.

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