Obama administration seeks to block wiretap suit

[kpete]

Source: Associated Press

Obama administration seeks to block wiretap suit
By Devlin Barrett
Associated Press Writer / October 30, 2009

WASHINGTON—The Justice Department invoked the state secrets privilege Friday to try to stop a lawsuit over Bush-era wiretapping -- the first time the Obama administration has done so under its new policy on such cases.

Attorney General Eric Holder announced the decision in a California lawsuit challenging the warrantless wiretapping program begun after the Sept. 11, 2001, terrorist attacks.

Under the state secrets privilege, the government can have a lawsuit dismissed if hearing the case would jeopardize national security.

The Bush administration invoked the privilege numerous times in lawsuits over various post-2001 programs, but the Obama administration recently announced a new internal review process in which more senior Justice Department officials would make such decisions.

Read more: http://www.boston.com/news/nation/washington/articles/2009/10/30/obama_administration_seeks_to_block_wiretap_suit/?rss_id=Boston.com+--+Latest+news

[NYC_SKP]

1. "the court can "conduct its own independent assessment of our claim." Holder said"

From the linked article.

snip-

To proceed with the case, Holder said, would expose intelligence sources and methods.

He also said U.S. District Judge Vaughn Walker, who is handling the case, had been given a classified description of why the case must be dismissed so that the court can "conduct its own independent assessment of our claim." Holder said the judge would decide whether the administration had made a valid claim and "we will respect the outcome of that process."

During the Bush administration, government lawyers resisted providing specifics to judges handling such cases about what the national security concerns were.

snip-

This seems to be a significant departure from Bush era unilateral secrecy.

:patriot:

[Cant trust em]

3. My gut tells me to be OK with this decision.

I could be talked out of it, but I feel like this meets some criteria for review.

[edwardian]

19. Continuation of bad goverment.

Its ok for one admin to cover up the crimes of the prior in order to deny justice and deny the restoration of the balance of rights...Sounds more like it's in order to be able to continue with the same crimes. No wonder you people come across as sheep...b-a-a-a-a-a-a-h!!!!Sheesh! Change you can't count on. Bunch of appeasers, deserve what you get.

[Cant trust em]

29. Phew. That was easy.

Thanks for boiling this complicated issue down so quickly.

[still_one]

33. Exactly. I criticized bush on this very issue, why would I let Obama off the hock for

implementing the same policy?

[defendandprotect]

2. And Bush started this wiretapping 6-7 months BEFORE 9/11 . . .

[No Elephants]

22. Yes, Bush was terrible in so many ways. No one is going to prosecute him, though.

Move along, now. You're only tying up traffic and creating a danger to the state, er, I mean, other people.

[Overseas]

4. If the disclosure would impede trying the Cheney Gang for war crimes

then I could understand.

The Bush Cheney Gang committed enough crimes that I can understand wanting senior Justice Department officials to review the cases so that none will jeopardize larger, ongoing investigations.

[No Elephants]

17. *giggle*

[kpete]

5. Obama Administration Invokes State Secrets Privilege…Again

Source: ABC News

Obama Administration Invokes State Secrets Privilege…Again

October 30, 2009 10:53 PM

The Obama administration invoked the controversial "state secrets" privilege again on Friday, arguing that if U.S. District Judge Vaughn Walker were to permit a legal case against the government to proceed, he would be putting national security at risk.

Attorney General Eric Holder said in a statement about the case, Shubert et. al v. Obama, that "there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people."

The case is a class action suit brought by four Brooklynites alleging that the Bush administration engaged in wholesale dragnet surveillance of ordinary Americans in which they were unjustly caught because they regularly made phone calls and sent emails to individuals outside the U.S., specifically in the United Kingdom, France, Italy, Egypt, the Netherlands, and Norway.

Obama administration officials argued that even addressing or attempting to refute the plaintiffs’ claim would require the administration "to disclose intelligence sources and methods, or the lack thereof."



Read more: http://blogs.abcnews.com/politicalpunch/2009/10/obama-administration-invokes-state-secrets-privilegeagain.html

[Downwinder]

6. In other words,

"Obama administration officials argued that even addressing or attempting to refute the plaintiffs’ claim would require the administration" to admit the Government broke the lsw and laid waste to the Constitution?

[sandnsea]

8. No

"We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power. Moreover, we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely."

http://obama-mamas.com/blog/?p=541

[ixion]

16. "we invoking it to preserve executive power"

Isn't that precious. They want to hold on to Bush-era power grabs.

Absolute power corrupts absolutely.

[No Elephants]

23. Self Delete.

[No Elephants]

25. Yes, the OP has the same statement. What else would the D of J say about asserting the privilege?

Courts have already said that the Executive may not assert this privilege successfully if the Executive is asserting it to conceal government misconduct or avoid embarrassment, or to preserve executive power. So, whenever you do assert the privilege in court, of course, you allege that you are not asserting the privilege to conceal government misconduct or avoid embarrassment, or to preserve executive power.

What else would anyone expect the D of J to say? How about, "Judge, we are claiming that revelation of this information would jeopardize national security and therefore, we are entitled to keep this information secret. In reality, however, we are asserting the state security secrets privilege only because disclosure of this information would reveal misconduct and therefore embarrass us or our predecessor. Besides, exposing things cramps the style of the Executive and we just don't like it." How far is that claim going to get, even with a judge who would normally be spooked by a state secrets claim?

The statement has no meaningful significance whatever. It's required if you have any desire at all for your claim to succeed. It's SOP.

[sandnsea]

7. Holder's full statement

http://obama-mamas.com/blog/?p=541

"As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so. Much like previous litigation in which the government asserted the privilege, the core claims in this case involve questions about ongoing intelligence operations..."

[katandmoon]

9. "And please just take our word for that -- we wouldn't lie to you!"

[Cant trust em]

10. Phew. That was easy. nt

[No Elephants]

28. Yes, so? Again, what do you expect him to say? "Disclosing this

information would not jeopardize national security, but we are asserting the state secrets privelege to shut down this lawsuit just because we feel like it?"

[Skink]

11. Republican payback.

how dare you try and do what we do.

[joeycola]

12. "The Obama administration has essentially adopted the position of the Bush administration in these c

"The Obama administration has essentially adopted the position of the Bush administration in these cases," said Kevin Bankston, a lawyer for the Electronic Frontier Foundation, "even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration's abuse of the state secrets privilege."

The EFF is involved in similar litigation in a different case.

The Obama-Biden campaign website describes in part "The Problem" as the Bush administration having "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court." But President Obama has invoked the state secrets privilege in a number of cases since taking office.

- jpt:-( :-( :-( :-(

[NYC Liberal]

14. The key part of that being "more than any other previous administration"

Just because Bush and Co. abused the hell out of things doesn't make everything they used to further their corruption inherently bad.

Signing statements were around well before Bush came to office. Bush was wrong because he abused them, not simply because he used them at all.

[No Elephants]

18. I have seen that comment about signing statements so many times and it is misleading as hell.

Yes, signing statements have been around for a very long time. But, before Bush, they amounted to no more than things like, "I love this law. It'll be great for the country." Or, the very rare "I wish Congress hadn't put this on my desk, but I'll sign it and obey and enforce it anyway." Not in those exact words, of course.

Bush's signing statements, however, were things like. "This law does not apply to or limit me or the Executive Branch." "I am not going to have the Executive Branch enforce this law." Again, not in those exact words, but the gist.

In other words, they went from the equivalent of Hallmark cards to unprecedented power grabs and defiance of the constitutional exclusive law making power of Congress.

So, the statement that signing statements were around long before Bush, while true in a very narrow and technical sense, could not be more misleading. It is very dangerous to our role as citizens precisely because it is superficially accurate, albeit in a meaningless way, and I hope to heaven I never see it again.

Nothing personal.

[edwardian]

20. A poster who can understand nuance?

Wow! Maybe there is a reason to keep coming here! Thanks NE for a ray of intelligence and hope.

[No Elephants]

26. Thank you, but each and all of us has bits of knowledge. Pooled, they are I hope,

greater than the sum of their parts. And that is the beauty of DU.

[Cant trust em]

30. So you're in favor of nuance as long as it supports your position.

I see how it works now.

[24601]

24. The point of a signing statemen is to highlight differences in the

interpretation of a law between the executive and congressional branches. When they conflict, such as when a President believes it encroaches on inherent Article II authorities, that view is as valid as Congress' opinion until the courts make a determination as to which is right. The Constitution make no provision for favoring one branch over the other until the courts decide.

[No Elephants]

27. Sorry, no. The point of a signing statement is whatever the President wants it to be,

consistent with existing law.

Presidents made up the signing statement, having no particular law that authorizes thems. So, the only point they have, if any at all, is the point the particular President signing the bill in question ventures to make make.

However, as my post states, only Bush, and now Obama, used the signing statement in the way that you describe. Before Bush, they were, as my prior post stated, not attempts at substantive change to the law in any way at all.

And I say that after having researched, read and analyzed every single Presidential signing statement from the very first signing statement until the first time Obama followed Bush's lead.

Whether the version of the signing statement that Bush began is consistent with the Constitution or not has yet to be ruled on. I pray it isn't ruled on at all until we have a more progressive SCOTUS; and then I hope the SCOTUS says the Bush innovation violates the Constitutional allocation and separation of powers.

On edit: Though I stand solely on my own reading and analysis of the statements, see also: http://writ.news.findlaw.com/dean/20060113.html

As my prior post stated, the Constitution gives Congress EXCLUSIVE power to legislate and the Judiciary the power to decide cases.

If the President disapproves of a law for any reason, the Constitution tells him what he can do about it: sign it anyway, veto it or "pocket veto" it. Bush wanted it every which way. And Obama so far has not yielded back any power Bush arrogated to himself, even if Obama criticized Bush for the very same behavior while campaigning {on change}.

[24601]

32. What you are saying simply isn't accurate - Here's a link to a Bill

Clinton signing Statement article as an exemplar - where he says he will not enforce the unconstitutional parts of a law he signs:

http://stuartbuck.blogspot.com/2006/01/clinton-signing-statement.html

"I do object to the provision in the Act concerning the transmittal of abortion-related speech and information. Current law, 18 U.S.C. 1462, prohibits transmittal of this information by certain means, and the Act would extend that law to cover transmittal by interactive computer services. The Department of Justice has advised me of its long-standing policy that this and related abortion provisions in current law are unconstitutional and will not be enforced because they violate the First Amendment. The Department has reviewed this provision of S. 652 and advises me that it provides no basis for altering that policy. Therefore, the Department will continue to decline to enforce that provision of current law, amended by this legislation, as applied to abortion-related speech."

While I understand the sentiment to lay all the blame on Bush - it just isn't true. When we blame him for everything, and it's so easily determined that the charge is untrue, it throws doubt on the veracity of everything.

[NYC Liberal]

31. Yep, but that's exactly my point though.

MANY of the things that Bush did have been around for a long time. FISA has been around since the late 70s. We've had wiretapping for ages. Bush abused the hell out of those things and used them for purposes for which they were never intended.

So my point was that we should not automatically attack Obama for using some of the things that Bush happened to use (and abuse). The FBI under Obama is still going to wiretap people. Just because Bush abused the wiretap and used it illegally doesn't mean wiretapping is bad, and it doesn't mean that Obama is going to use it in the same way.

[Solly Mack]

13. k/r

[ixion]

15. and the wire-tapping that started BEFORE 911...

you know, before there was any convenient reason to do so. Is that okay, to, Mr. Holder?

:puke:

Damnit. Uphold the Rule of Law or get the hell out. :grr:

[No Elephants]

21. Nothing significant about this is new.

http://blogs.abcnews.com/politicalpunch/2009/10/obama-administration-invokes-state-secrets-privilegeagain.html

(Note the "again")

Yes, the D of J has a new internal procedure and this is the first case after institution of that new internal procedure, but so what? That seems like almost an irrelevant detail. The reporter may be trying to imbue the story with "newsiness" by making it seem like something new, but that is a disservice to the reader, who should realize that the Obamadmin has been claiming this privilege from the jump.

This is one of many cases in which the Obama administration has continued the exact same position taken by the Bush administration or, if a new case, defended and protected the activities of the Bush administration, including trying to keep them secret.

That said, the judge will review the state security secret claim and either allow it or disallow it. I don't think that is new, either. And a national security claim made by the Executive Branch usually spooks judges and they cave. Keeping America safe is not their job and they know nothing about it. With rare exceptions, they see that as the job, and expertise, of the Executive Branch. Nothing new about that either.

Because the judges do usually cave so easily, a responsible, ethical Executive Branch keeps those claims to an absolute minimum. Fat chance, nowadays.

About all the public can do is keep track of how many times the Executive Branch makes the claim and draw its own conclusions. And that is why this reporter's spin on the story is a disservice to the public, IMO.

Next.