Obama’s Latest Use of ‘Secrecy’ to Shield Presidential Lawbreaking

Published on November 5, 2009

Note, too, how this latest episode eviscerates many of the excuses made earlier this year by Obama supporters to justify this conduct. It was frequently claimed that these arguments were likely asserted by holdover Bush DOJ lawyers without the involvement of Obama officials — but under the new DOJ guidelines, the Attorney General must personally approve of any state secrets assertions, and Eric Holder himself confirmed in a Press Release on Friday that he did so here. Alternatively, it was often claimed that Obama was only asserting these Bush-replicating theories because he secretly hoped to lose in court and thus magnanimously gift us with good precedent — but the Obama administration has repeatedly lost in court on these theories and then engaged in extraordinary efforts to destroy those good precedents, including by inducing the full appellate court to vacate the decisions or even threatening to defy the court orders compelling disclosure. No rational person can continue to maintain those excuses.

Is there any doubt at this point that, as TalkingPointsMemo put it in a headline: “Obama Mimics Bush on State Secrets”? Or can anyone dispute what EFF’s Kevin Bankston told ABC News after the latest filing from the Obama DOJ:

The Obama administration has essentially adopted the position of the Bush administration in these cases, even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration’s abuse of the state secrets privilege.

Extreme secrecy wasn’t an ancillary aspect of the progressive critique of Bush/Cheney; it was central, as it was secrecy that enabled all the other abuses. More to the point, the secrecy claims being asserted here are not merely about hiding illegal government conduct; worse, they are designed to shield executive officials from accountability for lawbreaking. As the ACLU’s Ben Wizner put it about the Obama DOJ’s attempt to use the doctrine to bar torture victims from having a day in court: “This case is not about secrecy. It’s about immunity from accountability.” That’s what Obama is supporting: “immunity from accountability.”

What makes this most recent episode particularly appalling is that the program which Obama is seeking to protect here — the illegal Bush/Cheney NSA surveillance scheme — was once depicted as a grave threat to the Constitution and the ultimate expression of lawlessness. Yet now, Obama insists that the very same program is such an important “state secret” that no court can even adjudicate whether the law was broken. When Democrats voted to immunize lawbreaking telecoms last year, they repeatedly justified that by stressing that Bush officials themselves were not immunized and would therefore remain accountable under the law. Obama himself, when trying to placate angry supporters over his vote for telecom immunity, said this about the bill he supported:

I wouldn’t have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush’s abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration’s program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.

Yet here is Obama doing exactly the opposite of those claims and assurances: namely, he’s now (a) seeking to immunize not only telecoms, but also Bush officials, from judicial review; (b) demanding that courts be barred from considering the legality of NSA surveillance programs under any circumstances; and (c) attempting to institutionalize the broadest claims of presidential immunity imaginable via radically broad secrecy claims. To do so, he’s violating virtually everything he ever said about such matters when he was Senator Obama and Candidate Obama. And he’s relying on the very same theories of executive immunity and secrecy that — under a Republican President — sparked so much purported outrage. If nothing else, this latest episode underscores the ongoing need for Congressional Democrats to proceed with proposed legislation to impose meaningful limits and oversight on the President’s ability to use this power, as this President, just like the last one, has left no doubt about his willingness to abuse it for ignoble ends.

Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy”, examines the Bush legacy.

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