[Peace-discuss] Obama Mimics Bush On State Secrets (& much else)

[C. G. Estabrook]

	Expert Consensus: Obama Mimics Bush On State Secrets
	By Zachary Roth - April 9, 2009, 6:20PM

Is the Obama administration mimicking its predecessor on issues of secrecy and 
the war on terror?

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.

Coming on the heels of the two other recent cases in which the new 
administration has asserted the state secrets privilege, the motion sparked 
outrage among civil libertarians and many progressive commentators. Salon's 
Glenn Greenwald wrote that the move "demonstrates that the Obama DOJ plans to 
invoke the exact radical doctrines of executive secrecy which Bush used." 
MSNBC's Keith Olbermann called it "deja vu all over again". An online petition 
-- "Tell Obama: Stop blocking court review of illegal wiretapping" -- soon appeared.

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."

Gude's general view was echoed by Amanda Frost, an associate professor at 
Washington College of Law who has written extensively about issues of government 
transparency. Frost made clear that she hadn't followed the Jewel case, but 
called the Obama administration's assertion of the state secrets privilege in a 
similar high-profile wiretapping case involving an Oregon-based Arabic charity 
"indefensible." The NSA, she said, has already acknowledged the existence of the 
wiretapping program, and some of its details are publicly known, so the claim 
that national security would be jeopardized merely by allowing the trial to 
proceed doesn't hold water. The government is making that argument in both the 
Oregon case and Jewel.

Not everyone agrees. Stewart Baker, a former top lawyer with the Bush Department 
of Homeland Security, told TPMmuckraker that there can be an inherent conflict 
between protecting national security and allowing lawsuits to go forward. "It 
isn't possible to litigate these cases and still have classified programs," said 
Baker, who worked in the Carter administration and was chief counsel to the 
National Security Counsel under Presidents Geirge H. W. Bush and Clinton. He 
added of the Obama team: "I think they made the right call."

But that seems to be the minority view. In an email to the Washington Post's Dan 
Froomkin -- who himself calls the Obama administation's position "utterly 
un-American" -- Louis Fisher, a specialist in constitutional law at the Library 
of Congress, writes:

     "1. The administration defends the state secrets privilege on the ground 
that it would jeopardize national security if classified documents were made 
available to the public. No one argues for public disclosure of sensitive 
materials. The issue is whether federal judges should have access to those 
documents to be read in their chambers.

     "2. If an administration is at liberty to invoke the state secrets 
privilege to prevent litigation from moving forward, thus eliminating 
independent judicial review, could not the administration use the privilege to 
conceal violations of statutes, treaties, and the Constitution? What check would 
exist for illegal actions by the executive branch?"

And writing on Slate, the noted conservative constitutional scholar Bruce Fein 
notes:

     President Obama pledged to restore the rule of law. But the 
state-secrets-privilege wars with that promise.

That looks like a pretty broad consensus in opposition to the Obama 
administration's position. And it's the opposite of change we can believe in.

http://tpmmuckraker.talkingpointsmemo.com/2009/04/expert_consensus_obama_aping_bush_on_state_secrets.php