Blog on the Run: Reloaded

Friday, April 10, 2009 9:09 pm

Do as I say …

I’m a little late to this disturbing tactic by the Obama administration: continuing to use the same “state secrets” argument that the Bush administration did to try to shield itself from lawsuits. There’s a pretty blatant hyprocrisy visible here:

Last Friday, Obama’s Justice Department infuriated some legal observers by invoking the “state secrets privilege” in a lawsuit [filed by the Electronic Fronter Foundation] against the government over warrantless wiretapping. As multiple legal experts told reporter Zachary Roth, this means the Obama administration has now adopted one of Bush’s most controversial legal tools — the invocation of national security to justify government secrecy and shield it from legal action.

Obama attacked Bush’s use of it during the campaign. Indeed, Obama’s campaign Web site still identifies Bush’s use of the tactic as a “problem” that created undo “secrecy” and needs to be changed.

Certainly, invoking “state secrets” will be justified at times. But a judge ought to allow it only after the most stringent review, with the strongest presumption toward making things public, and with any restrictions as narrowly tailored as possible. That didn’t happen during the Bush years, I have no reason to think that’s what’s happening now, and I am disturbed that the Obama administration appears to think that whatever it’s doing now is good enough.

But what’s even more disturbing is that the Obama folks are pushing an argument that not even the Bush folks attempted: They’re saying that under the Patriot Act, the government is immune from lawsuits (under, say, the Foreign Intelligence Surveillance Act) over illegal surveillance unless the government itself chooses to disclose what it has. Glenn Greenwald has more here.

Novel though that argument is, it makes a mockery of both existing statutes and the Bill of Rights. The courts need to slap it down, hard. I wish I were optimistic that they would do so.

Even if the Obama folks have the best of intentions, they will someday be succeeded by folks who do not. The first tactic is a dangerous tool whose use ought to be strictly circumscribed. The second ought to be tossed out entirely.

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