The Obama Administration’s shocking decision to assert Bush-era arguments in its motion to dismiss EFF’s case against the government for warrantless wiretapping, Jewel v. NSA, has been slowly working its way into the mainstream news. We’re still hoping for more coverage, but for now there are several examples of recent reporting that are worth pointing to.
Salon blogger Glenn Greenwald and others in the left blogosphere were on the story early, just as they were throughout the fight over telecom immunity last year. Greenwald declared the Obama position to be worse than Bush:
It is hard to overstate how extremist is the "sovereign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying.
Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?
In a word, yes.
But the criticism of the government’s position wasn’t limited to the left side of the blogosphere. Law professor and Volokh Conspiracy blogger Orin Kerr – no friend of Greenwald’s -- called the government's sovereign immunity claim “a terrible argument....The statute just doesn't say that.” And Reagan appointee Bruce Fein at Slate argued that the state secrets privilege claim “wars” with the president’ pledge to “restore the rule of law.” Prompted by the Jewel news, the Atlantic also ran a series of posts on Obama and state secrets, here, here, and here.
As we noted last week, MSNBC’s Keith Olbermann made the story the subject of commentary two nights in a row. On the second night, in addition to interviewing EFF Senior Staff Attorney Kevin Bankston, Olbermann also managed to get House Speaker Nancy Pelosi on tape suggesting that Congress clarify that the PATRIOT Act did not immunize the government as the Obama Administration claims — "it shouldn't be that way," she said.
By the end of the week, Press Secretary Robert Gibbs, facing questions about the government’s claims, highlighted the hypocrisy of the administration’s legal position by claiming that President Obama still believes the Bush administration abused the state secrets privilege — even though President Obama is now using the privilege to try and get cases thrown out of court just as the Bush administration did:
Q: Does the President support the Justice Department's positions in that case?
MR. GIBBS: Yes, absolutely. It's the -- absolutely does. Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.
Q Before he was elected, the President said that the Bush administration had abused the state secrets privilege. Has he changed his mind?
MR. GIBBS: No. I mean, obviously, we're dealing with some suits, and the President will -- and the Justice Department will make determinations based on protecting our national security.
Q So he still thinks that the Bush administration abused the state secrets privilege?
MR. GIBBS: Yes.
On Friday, Senator Russ Feingold was the first legislator to issue a statement confirming his opposition to the Administration’s state secrets position, hopefully the first such statement of many:
I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration's alleged misconduct. The Obama administration's action, on top of Congress's mistaken decision last year to give immunity to the telecommunications companies that allegedly participated in the warrantless wiretapping program, will make it even harder for courts to rule on the legality of that program.
All this coverage is a good start. But the government’s claim of immunity from any judicial inquiry into the legality of its spying programs is so sweeping, so unprecedented, and so dangerous to democratic governance that it warrants further coverage, from bloggers and mainstream media alike. We look forward to reading more reports and analysis in coming weeks from our friends in the media on this important issue.
Meanwhile, if you haven't donated to EFF to help us fight back against the wiretapping coverup, now is the time!