Response to Jim

This post is a response to Jim’s comments to my previous post, which I have posted below:

Joe -

Is it possible that, once Obama and his cabinet got to their posts, they discovered that there either:

1. Was indeed material that needed to be hidden for the good of the country? Or, that...

2. The nature of what the Bush administration had done was not as bad as they thought from the outside?

Trying to be charitable to the big O.

Jim


Jim,

If 2 is true, there is no reason to continue to invoke "state secrets" or maintain the right to detain terrorist suspects indefinitely without due (or any) process. Obama repeatedly denounced these practices as a candidate. He called them tyrannical and un-American. And he was right to do so.

Obama's embrace of these practices now, at a minimum, needs a public explanation. If he was secretly planning to defend these practices all along while denouncing them as a candidate, then he is an untrustworthy liar. If he is worried about the political difficulties of our coming to terms with what the Bush administration did in our name, then he's not the leader I thought he was. And if Obama is worried that the CIA and/or other intelligence agancies will revolt and expose the nation to harm, then he is admitting that these agencies have become internal threats to our democracy and need to be dismantled.

With regards to point 1, the basic material facts are already public knowledge in most of these lawsuits.

In the telecom lawsuit, the only relevant facts are that the U.S. government intercepted the electronic communications of specific U.S. citizens without obtaining judicially issued warrants. The dispute in the case concerns "standing," or the plaintiffs' ability to prove that their personal communications were intercepted without warrants. This is usually impossible (because the government classifies information regarding whom it illegaly spies on without warrants). But in this case, the government accidentally sent a document to the Plaintiffs proving that they (and their attorneys) were the targets of warrant less wiretapping.

Thus, the only relevant facts needed to prove that the Bush administration committed felonies have already been judicially established. Yet the government argues that these facts are "state secrets" which preclude litigation. The Government even tried to retrieve the document that it sent to the Plaintiffs from the federal judge - the FBI actually came to the federal court and demanded the document! The judge refused and the FBI backed down.

In short, the Obama DOJ, following the Bush DOJ, is arguing that the warrantless wiretapping of particular individuals is a state secret, even though the fact of it is already a matter of the public and judicial record.

What's more, the Obama administration went way beyond the Bush administration's "state secrets" argument (which was itself an abuse of a historically narrow evidentiary privilege). The Obama DOJ argued that the government is completely immune from lawsuits over warrantless wiretapping, as the sovereign, provided that it does not disclose the information it obtained when it spied.

The Fourth Amendment and federal law? Poof! The Obama DOJ's position is that there is no judicial remedy to enforce the Fourth Amendment or federal anti-spying statutes against the government - even though the sole purpose of the Fourth Amendment and these statutes are to restrain the government!

These radical arguments have only one goal; preventing a judicial ruling on the illegality of what the Bush administration did. There is no other explanation. Obama is complicit in President Bush's criminality by covering it up.

The same reasoning applies to the torture lawsuit. Obama's DOJ continued the Bush administration's assertion of the “state secrets” privilege, even though all of the material facts of the case are public knowledge. The CIA used a particular air service provider - the defendant - to transport a suspected terrorist overseas, where he was tortured. None of these facts are disputed. They are part of the public record.

Yet the Obama administration continues to insist that these facts are “state secrets” that preclude litigation. Regarding this absurd legal position, Plaintiff’s counsel put it best when he noted, "it appears that the only place on earth where these facts cannot be discussed is inside this courtroom."

The “state secrets” privilege was, as Greenwald aptly noted, "the linchpin of the Bush administration's radicalism and criminality." It kept them out of court, where their actions and legal rationales would have received scrutiny. But in cases where the requisite facts are already public knowledge, the only explanation for its continued invocation by the Obama DOJ is to prevent a judicial ruling on the government's actions. It is to protect the Bush administration from legal accountability for its torture and warrant less wire tapping programs.

This is inexcusable. I didn't vote for Obama so that he could hide governmental criminality. And I won't (silently) stand for it.


Joe H.