Obama DOJ Declines To Support Legality Of Bush Surveillance Program
Hot on the heels of the Telephone Immunity Secrecy Blob, today the 2nd Circuit Court of Appeals heard oral argument on Wilner v. NSA and DOJ, a FOIA case wherein the Center for Constitutional Rights is seeking disclosure of evidence of clandestine surveillance of attorney-client conversations between detainees and their counsel. The CCR issued this press release today:
The Court of Appeals heard arguments today in the Center for Constitutional Rights (CCR) warrantless surveillance case, Wilner v. National Security Agency (NSA). CCR and co-counsel argued that the executive branch must disclose whether or not it has records related to wiretapping of privileged attorney-client conversations without a warrant.
Said Kathryn Sabbeth, Assistant Professor of Law at the University of North Carolina at Chapel Hill School of Law, who argued the case, “No argument could be made that targeting American lawyers on American soil to obtain information about their clients was legal, and indeed when counsel for the government was pressed for an explanation he offered none.”
The rights attorneys appealed the government’s Glomar assertions, meaning its refusal to either confirm or deny the existence of records sought in Freedom of Information Act (FOIA) litigation relating to the NSA warrantless wiretapping program and surveillance of attorneys representing detainees at Guantánamo.
“Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration,” said Shayana Kadidal, Senior Managing Attorney of the CCR Guantánamo Global Justice Initiative. “The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA.”
During arguments, the government’s counsel stated, “We take no position on the legality of the TSP,” referring to the Bush administration’s Terror Surveillance Program.
The case is a FOIA lawsuit on behalf of 23 attorneys, including CCR staff attorneys Gitanjali S. Gutierrez and Wells Dixon, law professors, and partners at prominent international law firms, who believe they may have been the subjects of the NSA’s warrantless wiretapping program authorized by the prior administration shortly after September 11, 2001. CCR, the Institute of Public Representation at Georgetown University Law Center and the Chicago law firm Butler Rubin Saltarelli & Boyd filed the case in the U.S. District Court for the Southern District of New York on May 17, 2007. The district court ruled the NSA could refuse to say anything either confirming or denying the existence of any related materials because to do so “would reveal information about the NSA’s capabilities and activities.”
Plaintiffs argued that the program and many details about it have already been made public, and a confirmation or denial that the lawyers were subject to surveillance cannot possibly harm NSA’s intelligence-gathering abilities. The government cannot refuse to confirm or deny that these records exist, they said, because it would be unconstitutional and illegal to be eavesdropping on the lawyers without a warrant, and FOIA exemptions cannot shield unconstitutional or illegal conduct.
For more information on Wilner v. NSA, click here.
Did you notice the bolded paragraph in the release and the direct quote from the government during argument? Because it is fairly interesting.
The plaintiffs are arguing that exceptions to FOIA cannot be asserted to shield illegal and unconstitutional conduct and the government is refusing to affirmatively defend the legality of the conduct at oral argument on appeal. To be fair, the government is simply being consistent as they also refused to defend the legality in the trial court, instead relying on the FOIA equivalent of a state secrets assertion known in FOIA litigation circles as the "Glomar Response". (For further discussion and explanation of the Glomar defense, see the order by Judge Cote in the District trial court).
In short, once again the Obama Administration is, in yet another forum, adopting lock, stock and silencer fitted barrel the policy, tactics and arguments of the Bush/Cheney Administration to shield wholesale illegal and unconstitutional conduct by way of executive classification and secrecy.
President Obama may have won the Nobel Peace Prize; but, contrary to his strident promises while campaigning, he sure won’t be up for any prize for honesty, transparency, and repeal of Bush/Cheney illegal and unconstitutional surveillance programs.
The Norwegians in a fit of hopefulness held out a carrot. I’m hopeful that the federal courts bring down a very very large stick.
Obama ran a campaign where he urged us all to hope for change. And he has delivered. We are all now hoping for change. As for delivering change… that’s another campaign…
Yes, I noted the irony, too, of the Obama peace prize, and the Obama administration’s Bush-like stonewalling on executive secrecy and wiretapping. Others have noted, elsewhere, the peace prize going to the man who wants to step up the war in Afghanistan.
If I get my ass in gear, I’ll be writing about yet another irony: that the Obama administration is pushing a version of abusive interrogation in the current Army Field Manual, the methods for which, when utilized by the Bush administration at Guantanamo, were found by a judge in a recent Gitmo habeas case, to be in violation with the methods authorized by the earlier version of the AFM, and produced false confessions in the al-Rabiah case (Andy Worthington reported on this story about a week ago).
Great job, bmaz. On top of it as always.
Don’t forget the Crawford admission that cumulative methods amounts to torture.
I won’t, forget, that is.
To Jim @4 — Congratulations! That was a great summary of the situation with the Obama administration, and that’s great they picked it up. I know everyone here must be proud of you, expressing what many at this site must feel about the circumstances of the NPP award.
Now, you’ll be checking those AP stories more assiduously, I suppose
Better watch out with statements like that, bmaz. AP is running with a quote from my Seminal diary from this morning to demonstrate how us lefties are saying Obama hasn’t earned the prize yet.
I can just see the AP copy now: “According to bmaz….”.
Eh well, saves me from suing their ass for unauthorized use of my content.
Heh, 17 USC 107 cuts both ways…
That would be useful if they were debating the premise, with non/supporting facts con and pro. The AP article was a typical “review” of opinion, a simple variation on he said-she said non-reporting.
I didn’t check whether their quote from your piece was accurate. I thought the quote was clear and nuanced: not critical of the Nobel decision so much as specifying what Mr. Obama hasn’t done yet. The AP seemed to lump such comments with empty-headed whining and overt racism, demonstrating much less nuance than your comment.
The quote was accurate but was carefully chosen as the most incendiary part. The commenters preferred the closing paragraph:
Wow Jim and to be able to say I knew you when…
Nice quote by the way.
Mighty fine catch bmaz!
And an even finer focus on the best juicy bits!
phred and Jeff,
Thanks. But of course the way the article is set up, I’m just the loony guy on the left to balance out their quote from Erick Erickson as the loony guy on the right. I suppose that we can take some solace in getting something we’ve all been harping on together into their story.
Getting back on track, bmaz, is this the first time DOJ has gone agnostic on TSP’s legality, and would that position help in any other pending cases?
Well, I don’t know; but there is a valid reason why they took no position here. The Glomar response is effectively a complete blackout to where they do not even admit or deny that they have any responsive information. So under that assertion, if valid, you would not even get into legality and, in fact, if you read the court’s order, they did not at the trial level. If you were to assert legality, it could possibly open the door to further invasion into the facts, which erodes the Glomar protection, which the trial court upheld. My problem here is the craven hiding of clearly illegal conduct through the Glomar assertion in the first place. Let’s be honest, if they didn’t invade the attorney client relationship, they would simply swear to that and respond that there is no information because there was no such invasion. They did intrude and they are covering it up, and that is simply unacceptable to the founding constructs of US rule of law. That is the real issue here and it is just another example of the Obama oneness with Bush in this regard; his record is starting to be devastatingly telling.
This will make for an interesting tie with Walker’s case. I’m glad to see some hammering going on for the “can’t classify-secrefy illegal behaviour” argument. It’s something they need a court to have to hit head on – the Executive is breaking the law, can he cover it up with classification? IMO, we’ve already been there, done that. It doesn’t get used this way in the briefs I’ve seen, but the Keith case involved a declaraton from Mitchell that was basically a state’s secret declaration -meeting all the Reynolds requirements. And the Sup Ct said, ’suck eggs’ or something like that.
bmaz,
I’m confused. Your headline is Obama DOJ Declines To Support Legality Of Bush Surveillance Program, but then you end your diary with
Aren’t your beginning and ending a bit at odds? The first says Obama is not protecting Bush, but the last suggests that he is. If the real issue is assertion of state secrets to cover up criminal acts by the White House, shouldn’t your title focus on that?
In any case, thanks for this piece of work.
Bob in AZ
You raise what might be a problem inherent in writing about deceptive practices. A normal sentence, like this one, goes from one end to the other; it has one intention, one destination.
Does writing an accurate title about deceptive practices inherently involve a “double-headed” sentence? As in, adding a qualifier, thus: “In a deceptive move, …”
That ends up cluttering up titles, so, IMOFWIW, the simple declarative is best.
What I appreciate about this blog is the ability to follow the excruciatingly detailed legal proceedings in which the duplicity (inherent and otherwise) in our effed up system is hidden in plain sight.
Believe it or not, it’s an exercise in fractal, not Euclidean poetics. Get the picture? Growing naturally vs. reducing our narrative to stick figures. Let me try to explain a multi-dimensional idea.
We all know about parallel development, right? In fact, it’s been sanctified as the only duty of journalists: he-said / she-said applied even to the behavior of political parties. Well, what does fractal narrative development look like?
As a medium, IMO, it looks like this thread right here. The fundamental unit of fractals is the self-similar pattern; here, it’s the topic. Instead of buying the party “line,” fracturing along age-old divisions and entrenched interests, what happens when we just detail each and every instance of crucial behaviors and look at the patterns that shape and suggest themselves? After all, actions speak louder than words, and intentions motivate actions, so there we go, we don’t need crystals balls or special access to keep our eyes on our public servants.
Here’s the problem for the Pentagon’s influence operators and their $4.7 billion budget: they can’t fully dominate this medium of narrative diffusion. The old feudal order of the so-called Newtonian revolution can’t keep up with this new organic order.
For example, as this excellent Laura Flanders segment discusses, we don’t have to get on-board the press bus, not when we can do this right here. (Full disclosure: I was just asked for permission by GRITtv for possible use of a comment I made there.)
As an example of the power of myth to shape events, check out this (somewhat lengthy, but hey, it’s Saturday) Chomsky description, from ZNet in 2007 and ChomskyInfo, detailing the effect of Kissinger’s fanatical faith in the myth of the world as Newtonian mechanism on US history. It’s the same mistaken mythos that imagines the cosmos, and therefore us, to be not a growing organism, but a mechanism governed by laws derived from Newton’s old balls in empty space.
The mechanistic reduction absolutely adopted by the US as policy is what’s killing us. It’s the myth within which our military men become weather men, and weapons of destruction become tools of nation-building. It’s the myth that powers our attempts at asserting “full-spectrum dominance.”
Problem is, did all you legal eagles know that reductionism has failed as a model for us humans?
That means, with our non-linear growth and virtually infinite possible interactions, we humans have this power right here: to shape our human history from within. I’m hoping this is the death of the effort to reduce humans to mechanisms and then master us as if we really were mechanisms, as in APA’s wrongheaded support of torture.
Paraphrasing Bob Dylan, I suggest our answers to our most pressing problems are being written in the threads, whiplash titles and all.