Obama DOJ Invokes State-Secrets Privilege and Patriot Act To Justify Continued Bush Warrantless Wiretaps

A BUZZFLASH NEWS ANALYSIS
by Christine Bowman

Illegal wiretapping cases could spell trouble for President Obama. What can the Obama Administration be thinking?

At the Obama presidential campaign website, barackobama.com, a page titled "Plan to Change Washington" describes problems in government and then presents "The Obama/Biden Plan" to correct such problems. Here's the section on the problem of government secrecy:

Secrecy Dominates Government Actions: The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court.

But then in the section on Obama's planned solutions, the state-secrets legal tool doesn't come up again. Was that an oversight or a deliberate omission? Was there actually no Obama/Biden plan to challenge or curtail the state-secrets claim that the Bush administration used so often? It seems so.

President Obama's DOJ last week filed a request for dismissal of an electronic surveillance case, Jewel v. NSA, brought by the Electronic Frontier Foundation (EFF) on behalf of AT&T clients before U.S. District Court Judge Vaughn R. Walker in San Francisco. Their arguments? State secrets must be protected, and on top of that, the government should be immune from prosecution for spying on citizens unless they willfully leak the secret information they have gathered. They cite the Patriot Act for that part, which the Bush administration had never done.  EFF Attorney Kevin Bankston told BuzzFlash Thursday the DOJ's arguments in the case are "plainly wrong." He also said the Justice Department's "chances of success on that point are not very high."

To summarize, the DOJ wants to allow the NSA to keep doing unrestricted electronic surveillance; the DOJ wants to keep the NSA's secret documents from being used in court; and they want the Jewel v. NSA case thrown out. The EFF wants Fourth Amendment protections against unreasonable invasion of privacy upheld for American citizens. They want the case to be heard. They seek to stop what they call the government's "illegal, unconstitutional, and ongoing dragnet surveillance ... of millions of Americans." As Kevin Bankston told BuzzFlash, the EFF "believes and alleges based on widespread news reports and whistleblower evidence" that the NSA is intercepting not only the transactional information but also the contents of "practically everyone'" emails and phone calls illegally.

The EFF must respond in writing to the DOJ filing, and then Judge Walker, who has resisted Justice Department attempts to claim the state-secrets privilege before, will hear oral arguments from both sides June 25 (assuming no calendar changes). 

Tim Jones explains the DOJ's arguments in the case further at the EFF website: 

Previously, the Bush Administration has argued that the U.S. possesses "sovereign immunity" from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government's ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Regrettably, this is not the first electronic wiretapping case where Eric Holder's DOJ has tried to claim the state-secrets privilege. Another involves the al-Haramain Islamic Foundation.

More legal arguments will be made in writing and in court in the coming months, but what of the political side to this story? Many Obama supporters are losing faith. The President they helped to elect on a platform of change and transparency, and the one who was an expert on constitutional law, no less, now seems ready to usurp essential citizens' rights that are enshrined in the Bill of Rights. As a candidate, he had decried governmental overreach.

Will President Obama be able to restore that loss of faith, or even try? Doesn't he realize his base is boiling mad about domestic spying and warrantless wiretaps? The disconnect between campaign rhetoric and courtroom maneuvering is a problem the President must confront -- on this issue as well as on others.

Domestic spying is not a progressive value, or even a centrist or conservative value. It's a breach of the inalienable 4th Amendment rights of all Americans.

[Updated Thursday at 9 pm, with our apologies for an inaccuracy in the quoted statement from Kevin Bankston.]

The DOJ filing is here.

Related: DOJ Urges Dismissal of Warrantless Wiretapping Case Brought on Behalf of AT&T Customers (4/7/09)

A BUZZFLASH NEWS ANALYSIS