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What was once depicted as a grave act of lawlessness — Bush’s NSA program — is now deemed a vital state secret.

by Glenn Greenwald
Posted By Bulatlat.com

The Obama administration has, yet again, asserted the broadest and most radical version of the “state secrets” privilege — which previously caused so much controversy and turmoil among loyal Democrats (when used by Bush/Cheney) — to attempt to block courts from ruling on the legality of the government’s domestic surveillance activities. Obama did so again this past Friday — just six weeks after the DOJ announced voluntary new internal guidelines which, it insisted, would prevent abuses of the state secrets privilege. Instead — as predicted — the DOJ continues to embrace the very same “state secrets” theories of the Bush administration — which Democrats generally and Barack Obama specifically once vehemently condemned — and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law.

In the case of Shubert v. Bush, the Electronic Frontier Foundation represents numerous American citizens suing individual Bush officials, alleging that the Bush administration instituted a massive “dragnet” surveillance program whereby “the NSA intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government” and that “the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant” (page 4). The lawsuit’s central allegation is that the officials responsible for this program violated the Fourth Amendment and FISA and can be held accountable under the law for those illegal actions.

Rather than respond to the substance of the allegations, the Obama DOJ is instead insisting that courts are barred from considering the claims at all. Why? Because — it asserted in a Motion to Dismiss it filed on Friday — to allow the lawsuit to proceed under any circumstances — no matter the safeguards imposed or specific documents excluded — “would require the disclosure of highly classified NSA sources and methods about the TSP [Terrorist Surveillance Program] and other NSA activities” (page 8). According to the Obama administration, what were once leading examples of Bush’s lawlessness and contempt for the Constitution — namely, his illegal, warrantless domestic spying programs — are now vital “state secrets” in America’s War on Terror, such that courts are prohibited even from considering whether the Government was engaging in crimes when spying on Americans.

That was the principal authoritarian instrument used by Bush/Cheney to shield itself from judicial accountability, and it is now the instrument used by the Obama DOJ to do the same. Initially, consider this: if Obama’s argument is true — that national security would be severely damaged from any disclosures about the government’s surveillance activities, even when criminal — doesn’t that mean that the Bush administration and its right-wing followers were correct all along when they insisted that The New York Times had damaged American national security by revealing the existence of the illegal NSA program? Isn’t that the logical conclusion from Obama’s claim that no court can adjudicate the legality of the program without making us Unsafe?

Beyond that, just consider the broader implications of what is going on here. Even after they announced their new internal guidelines with great fanfare, the Obama administration is explicitly arguing that the President can break the law with impunity — can commit crimes — when it comes to domestic surveillance because our surveillance programs are so secret that national security will be harmed if courts are permitted to adjudicate their legality. As EFF put it last July (emphasis in original), government officials: seek to transform a limited, common law evidentiary into sweeping immunity for their own unlawful conduct. . . . [They] would sweep away these vital constitutional principles with the stroke of a declaration, arrogating to themselves the right to immunize any criminal or unconstitutional conduct in the name of national security. . . .

For that reason, as EFF pointedly noted the last time the Obama DOJ sought to compel dismissal based on this claim: “defendants’ motion is even more frightening than the conduct alleged in the Amended Complaint.” Think about that argument: the Obama DOJ’s secrecy and immunity theories are even more threatening than the illegal domestic spying programs they seek to protect. Why? As EFF explains.

Can anyone deny that’s true? If the President can simply use “secrecy” claims to block courts from ruling on whether he broke the law, then what checks or limits exist on the President’s power to spy illegally on Americans or commit other crimes in a classified setting? By definition, there are none. That’s what made this distortion of the “state secrets” privilege so dangerous when Bush used it, and it’s what makes it so dangerous now. Back in April, 2006 — a mere four months after the illegal NSA program was first revealed, and right after Bush had asserted “state secrets” to block any judicial inquiry into the NSA program — here is what I wrote about the Bush administration’s use of the “state secrets” privilege as a means of blocking entire lawsuits rather than limiting the use of specific classified documents:

Quite unsurprisingly, the Bush administration loves this doctrine, as it is so consistent with its monarchical view of presidential infallibility, and the administration has become the most aggressive and enthusiastic user of this doctrine . . . . As the Chicago Tribune detailed last year, the administration has also used this doctrine repeatedly to obstruct any judicial proceedings designed to investigate its torture and rendition policies, among others . . . . This administration endlessly searches out obscure legal doctrines or new legal theories which have one purpose — to eradicate limits on presidential power and to increase the President’s ability to prevent disclosure of all but the most innocuous and meaningless information.

That was the prevailing, consensus view at the time among Democrats, progressives and civil libertarians regarding Bush’s use of the state secrets privilege: that the privilege was being used to exclude the President from the rule of law by seeking to preclude judicial examination of his conduct. Plainly, Obama is now doing the same exact thing — not just to shield domestic surveillance programs from judicial review but also torture and renditions. Is there any conceivable, rational reason to view this differently? None that I can see.