EFF Legal Director Cindy Cohn has penned an opinion piece currently on the blog of the American Constitution Society. The piece points out that the Obama Administration has embraced two of the most radical positions taken by the Bush Administration — that the Executive Branch need not follow the law and that the courts should not be allowed to review the core constitutional questions that the Executive Branch wants hidden:
The Bush administration's central view was that the executive branch was somehow above the niceties of the Constitution. What's clear now, and deeply distressing, is President Obama's embrace of that radical view and rejection of the rule of law. Despite running on promises to return the country to the proper constitutional balance, President Obama's Justice Department has been pulling out all the stops to kill the major lawsuits challenging the surveillance while giving no indication that the surveillance has ceased.
The administration's arguments are not addressing the merits of the legal claims, but instead are seeking to prevent real judicial review of the surveillance programs and thereby avoid the crucial constitutional questions.