Obama Administration Accused Again of Concealing Bush-Era Crimes

“Defendants can neither admit nor deny whether they have possession and control of records responsive to certain other portions of plaintiffs’ request, because to do so would require the disclosure of classified information, or could tend to reveal classified information,” the NSA and Department of Justice state repeatedly in their response to the complaint.

Thomas Bondy, a Justice Department attorney, told US District Court Judge Denise Cote that the act of informing people whether records exist related to surveillance activity targeting them would give information to potential enemies.

“Anyone who asks that question [do records exist?] gets the same answer: We’re not saying yes and we’re not saying no,” Bondy said in court, adding, “if we ever answered this question for anyone, inferences can be made when we do not answer.”

The defense prevailed in district court, defending their “Glomar response,” a technique for combating FOIA requests on national security grounds. It was first used to conceal the CIA’s involvement in the construction of the Glomar Explorer, a deep-sea ship designed to covertly raise a sunken Soviet nuclear submarine.

The Glomar response has never been ruled on by the Supreme Court, has very limited case history and has never been ruled on by the 2nd Circuit Court of Appeals, where the fate of Wilner v. NSA will be decided shortly.

The Glomar response was one of the many legal tactics that the Bush/Cheney administration used to maintain an unprecedented level of secrecy and executive power. Civil libertarians hoped the Obama administration would abandon this policy, but so far they have been disappointed.

Constitutional scholars express regret that the Obama administration and Congress have failed to hold the Bush administration accountable.
“I’m frustrated that the Obama administration and Congress have not moved more quickly to establish accountability for Bush administration programs that were likely unlawful,” Ohio State University law professor and constitutional law scholar Peter Shane told Truthout.
“The Bush administration has been history for 10 months, and it is still not clear what path we are on to clarify the historical record on what the Bush administration did or did not do with regard to civil liberties. I wish there were less resistance to lawsuits that are trying to vindicate people’s rights in these matters.”

Matt Renner is the Director of Development at Truthout. He can be reached at Matt@truthout.org.

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