Obama’s Campaign Web Site Still Blasts Bush Legal Tactic Obama Is Now Using
This is one to watch, because it’s ballooning into a bigger and bigger problem for the new administration.
Last Friday, Obama’s Justice Department infuriated some legal observers by invoking the “state secrets privilege” in a lawsuit 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. Click to enlarge:
This underscores what a major turnabout this is and how difficult it will be for the Obama administration to justify this politically going forward. Yesterday White House spokesman Robert Gibbs visibly struggled as he defended the current use of the state secrets privilege while saying Obama still condemns Bush’s use of it.
This also creates a major political dilemma for some Democratic Senators, such as Russ Feingold and Patrick Leahy, who have aggressively criticized use of the state secrets privilege but have been largely silent on Obama’s current use of it.
This story is getting more and more attention — see Dan Froomkin’s take on it here — and will be one to watch.
Update: Much more context from Jake Tapper.
The homepage of this blog is here. RSS feed here. Twitter feed here. Email me here.
“it as a “problem” that created undo undue “secrecy””
OK, that didn’t take. Small error: undo = undue
As Froomkin suggests, whatever is behind this present policy position, “it must be big”. I’m less concerned re this administration’s motives than others might be, that is, I doubt they want to keep a power insisted upon by the Cheney crowd merely for the sake of solidifying executive dominance. But the problem still remains of future Cheney-like administrations further abusing such power and that’s real.
There is some potential or likely fallout from release of certain pieces of information (of Bush era shenanigans) which they clearly are trying to avoid. Or there are politically unpalatable policies which they’ve concluded ought to remain in place. Or, as Froomkin poses as one possibility, the CIA/NSA (and Pentagon) forces do not want revelations and are influential enough within Washington to cause significant problems for this administration’s other policy initiatives that this fight is deemed presently impractical. That would be my poorly informed guess.
And frankly, I doubt there will be much of a political price to pay at this point. None of us on the left wishes to deal mortal wounds to this administration and it will be mainly us who care much about this particular issue, I expect.
I know that the civil libertarians are very upset about the invocation of states secrets in these cases but the unfortunate thing is that this may be a necessary evil to protect our intelligence system going forward by covering for a rogue administration’s past abuses. On most of this I have decided to wait and see how it all plays out before I get too upset over it but the thing that got me the other day was that the DOJ made the argument that they could go all big brother on ANYBODY and as long as the information wasn’t made public they had immunity. Thats what I call crazy talk and VERY problematic.
.
Now here is the ironic part. The republicans and wingnuts swear facism or socialism is coming and the government is going to take everything over but most of them endorse the invastion of privacy that goes with FISA and whatever other ways the government is monitoring us that nobody knows about. If there was ever anything close to something out of the book 1984 its what our government did after 9-11 intruding on the privacy of its citizens. I wonder how long it will be though before they turn on a dime and denounce President Obama for doing the same or probably less when it comes to that than what Bush did when they were championing his wiretapping.
The point being made on Obama’s website seems to be directed at the frequency of the use of state secrets by the previous administration, not at their use in moderation. This is an important distinction to make. Let me know when he starts invoking this policy often enough for it to be called hypocrisy.
Dear Blow up: So it’s okay by you if Obama uses this to get cases blown out of court just so long as he doesn’t do it to often?
Maybe he’s an angel. However, governments of men will follow and the results can be expected.
This also illustrates the dangers of allowing the past to be the past without rebuking and defining what the past abuses are precisely.
This is not a political doctrine, it’s a legal doctrine that is established and has been for almost 50 damn years.
I don’t know why Greenwald keeps grinding this axe, but he knows or should know he has been very deceptive about all this right from the start.
Bush was just the latest president to use this doctrine – he did not think it up – it’s been in use since the 70s, at least. Glenn knows that and he’s lying by omission and has been all along.
OBAMA IS NOT BUSH
Reading what is on the website it seems like Obama’s quarrel is with the frequency that the “state secrets” privilege was used, not that it was used. Therefore, I don’t see a contradiction.
Plus, I would assume that there are and will be lawsuits filed trying to get information that really is important to keep secret. I guess I don’t see what all the fuss is about this as long as it is used only when necessary.
I suppose there will be times when invoking the “state secrets” privilege will be justified. 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. 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.
Greg
.
Feingold is silent no more
.
http://www.salon.com/opinion/greenwald/2009/04/09/tpm/index1.html
holyhandgrenaid: uh, if We The People are kept completely in the dark and are not allowed any oversight at all, how, then, exactly, do you expect to know when he’s done it “too much” for your liking? And aren’t you a little troubled by the cognitive dissonance of something being “okay until it’s done too often?”
That sounds like the lame advice given by well-meaning parents about masturbation, but we’re talking abuse of power here, and I think you need a firmer legal footing than “don’t too it too much, or hair will grow on your administration…”
Pelosi told Olbermann the other night that the Patriot Act prohibited lawsuits like the one EFF brought. She said the Act would expire, thus requiring renewal, at the end of this year.
Is this a diversion by Pelosi…or is there some truth here?
I don’t care if Obama is just, and judicious, in his use, President Romney or VP Palin won’t be so just.
The solution is simple. Act as if the law was broken (it WAS). Prosecute the offenders, and let the convicts take it to the SCROTUMS, I mean SCOTUS.
There’s also something called throwing the baby out with the bath water. I assume that before the Obama administration decides to get rid of legal doctrine that was in place long before Bush, they’ll assess the whole situation and all the ramifications including the impact on national security. For the sake of argument, though, let’s assume this is a nefarious as Greenwald wants to believe. What are those all left over, embedded political appointees from the Bush years up to these days?
Tena
.
Sorry but the concern is justified. By any and every measure Bush severely abused the states secrets priviledge and President Obama when he was a Senator was one of his harshest critics. The truth is if you are going to complain about something someone else is doing then you can’t turn around and do the same thing without people calling you a hypocrite. I think Glenzilla takes it too far sometimes but he has to his credit pointed out many times that invoking states secrets of and by itself is not the problem. Its how many times you use it and the circumstances IE cases having to do with torture or illegal wiretapping. Obama isn’t perfect and this is one area where what he is doing so far isn’t exactly inspiring confidence.
JUST TO MAKE SURE YOU SEE THIS: GREG, THIS IS NOT A “TACTIC”
IT IS AN ESTABLISHED LEGAL DOCTRINE, dammit.
“bama isn’t perfect and this is one area where what he is doing so far isn’t exactly inspiring confidence.”
You people don’t know **** about the law, obviously. That doctrine has been used by: Reagan, Clinton, Carter, Bush I, Bush II and now Obama.
Tell y’all what – I send $10 every month to EFF and have for 3 years. I may just quit.
This is bullshit.
Greg, might I ask a favor? If you’re going to reference/link Jake Tapper, can you please give a synopsis of his “point” or “facts” or “context” beforehand? I trust your summarization on anything JT has to say…
.
Why? Because I simply refuse to clink on any links to that smug jackass. I will not feed him more traffic.
There is nothing wrong with asserting the privilege if it is defensible.
The problem is when it is a mindless, default position. As an example, there are lawyers who, in the course of civil discovery or other document/information production situations, automatically, as a matter of course, assert the attorney-client privilege over a document if it has a lawyer’s name anywhere on it. This is particularly the case with e-mails — if a lawyer is anywhere in the “To” or “CC” lines (or the “From” line), it is privileged, according to this type of lawyer. These lawyers assert the privilege in rote fashion, without actually considering the elements of a proper privilege claim (for a decent discussion, see http://en.wikipedia.org/wiki/Attorney-client_privilege).
On the other hand, there are lawyers that take a more narrow view of the privilege, and consider issues like the content of the communication, the number of parties to the communication, the identities of the parties to the communication, etc. If the lawyer thinks that, after considering all of these facts and circumstances, the communication is one that fits within the scope of the attorney-client privilege, he or she asserts the privilege, and, to my mind, that assertion is defensible.
My understanding of President Obama’s objections to the previous administration’s claims of “state secret privilege” is that he objected to the same sort of rote, grossly overinclusive (or at least grossly underconsidered) claims of the privilege made by the Bush Administration. That is not to say that there are not appropriate state secret privilege claims, only that there are certainly INappropriate ones.
All of this is to say that I don’t take Obama’s objections to have been to the CLAIM of privilege per se, but to the justifications (or lack thereof) underlying those claims. I certainly don’t approve of a lawyer mindlessly asserting privilege over any document that mentions a lawyer’s name, but I DO approve of a properly-made claim that fits squarely within the concept of privilege set down in law.
If I’m correct, you really need to stop wringing your hands about this.
President Obama could spit in the face of most of the people commenting on the blog and they would say it was thank you. The gander rule needs to be applied to get real Change and Hope. I voted for President Bush disagreed with many of his policies agreed with some. I give them both one complement neither are brainless cowards.
Greg, I very much appreciate your running this post demonstrating that Obama’s clearly breaking, in a big and systematic way, a specific campaign pledge.
But I think you should credit Glenn Greenwald, who cited this exact passage exactly two months earlier, after the Obama DoJ’s first big demonstration of their commitment to the Bush abuse of the state secrets privilege:
http://www.salon.com/opinion/greenwald/2009/02/10/obama/
—
To the Obama apologists: Greenwald has never denied that the state secrets privilege pre-existed Bush; he has been entirely clear that the Bush innovation was to abuse it, repeatedly and consistently, to dismiss whole cases rather than to assert it during trials on specific pieces of evidence. That abuse is what the Feingold bill (which Biden and Obama supported when they were in the Senate) seeks to ban, and is what Obama pledged to end as President.
Neither Greenwald nor Feingold supports ending the ability of an administration to assert state secrets privilege at all. But it should be clear to everyone who thinks about it for a few minutes that giving the executive branch the ability to make legal cases disappear by means of a broad, unreviewable assertion of state secrets privilege is an enormous expansion of power.
I am not willing to cede that kind of power to any president — Barack Obama, George W. Bush, or George Washington. Unless Congress pares back this unaccountable power, blessing Obama’s (and Bush’s) abuse of it is equivalent to kissing goodbye the separation of powers and the system of checks and balances.
meet the new boss, same as the old boss….
my god do you people even think before you reply to these posts one person backing obama the other bush you are all fracking idiots just think about the beginning of the nazi we’re just going after the gypsies now just them evil christians now the evil jews hence evil terrorists evil pirates evil right wing extremists wake the FRACK UP
Great stuff. Nice to read some well written posts. A long way between them.
Where can I find a free anonymous web proxy to visit MySpace & Facebook? My school blocks these site. Any ideas?
Hi bloggers. I’m sorry – offtopic but I need help! I must learn english better so I dont get fired. What can I do?