Yesterday I noted that Obama had done a great thing in dismantling a portion of the Bush cloak of secrecy be repealing Bush’s executive order on presidential records. Today, I’m sorry to report (you won’t see much about this in the press, I would suspect) that he has taken a huge step down the Bushian road by adopting Bush’s legal position in the wiretapping arena. There are two issues involved. The first came up in a case in which two American lawyers are suing the government for illegal spying. Now, in order to sue someone you need to have “standing”, meaning, basically that you have to prove that you were injured by the person you are suing.
No one disputes that the two plaintiffs were wiretapped without a warrant. The problem is that they found out when the government released a “top secret” document to them revealing that fact. The government moved to put the genie back in the bottle, and a judge has decided that he won’t allow it. The government has taken an appeal from a pretrial order in which the judge ruled that the document in question could be used by the plaintiffs to prove they were spied upon:
The Obama administration urged a federal judge on Friday to stay enforcement of a ruling favoring the plaintiffs in a lawsuit challenging President George W. Bush’s warrantless eavesdropping program.
Justice Department special counsel Anthony Coppolino told U.S. District Judge Vaughn Walker during a 60-minute hearing here that the appellate courts should review his Jan. 5 decision allowing classified evidence into the case, a position the Obama administration took in court documents the day before.
Without the classified evidence, Coppolino said, the government wins the case by default, and two American lawyers who claimed they were unlawfully spied upon can’t pursue their lawsuit.
…
The lawyers — Wendell Belew and Asim Ghafoo – sued the Bush administration after the U.S. Treasury Department accidentally released the Top Secret memo to them, then successfully demanded its return. The memo was barred from the lawsuit through years of litigation, until Walker recently ordered the government to turn it over, after the plaintiffs successfully gathered unclassified evidence to support their case.
So the government, Obama’s government, is asking the court to allow the government to avoid accountability for its own actions by, in effect, turning an undisputed fact into one that cannot be proven. There is something rather Orwellian about it, and certainly something Bushian. In effect they are saying, “Yes we did it, but we’re declaring the evidence that we did it out of bounds”.
But it gets much worse. Obama has also committed himself to defending the grant of retroactive immunity he claimed to oppose back in the summer. Recall that he supposedly held his nose and voted for the amended FISA bill, despite the immunity provision, which he claimed to oppose. But that’s in the past:
The incoming Obama administration will vigorously defend congressional legislation immunizing U.S. telecommunication companies from lawsuits about their participation in the Bush administration’s domestic spy program.
That was the assessment Thursday by Eric Holder, President-elect Barack Obama’s choice for attorney general, who made the statement during his confirmation hearings before the Senate Judiciary Committee. A court challenge questioning the legality of the legislation is pending in U.S. District Court in San Francisco — where the judge in the case wanted to know what the Obama administration’s position was.
It is hard to see how the Congress can immunize unconstitutional behavior. Even if it can, it is hardly sound policy. And recall, the real reason for this legislation was not to protect the telecoms, but to protect the Bushie co-conspirators. Obama talks about ushering in an era of responsibility. You and I are going to be expected to be responsible, but apparently no one will be held to answer for the Bush era crimes.
Obama is a vast, vast improvement over Bush, but we’ll be no better than Republicans if we don’t call him out when he messes with our freedoms. We now know for sure, as we always knew to a moral certainty, that the spying wasn’t confined to terrorist or suspected terrorists. It’s recently been revealed that the NSA spied on members of the press, among other groups. The price of liberty, it has been said, is eternal vigilance. Like anyone else in a position of power, Obama will bear watching. His apparent comfort with large scale spying on the American people is disquieting to say the least.
