President Obama's Justice Department says some
government abuses are beyond the jurisdiction
of the courts. (AP Photo/Charles Dharapak)
The Obama administration's argument in February that even some of the worst government abuses are "state secrets" beyond the reach of the courts proves to be no temporary flashback to the Bush era. In a court filing last week, the Justice Department reiterated that argument, demonstrating that, in many ways, not much has changed just because the White House is under new management.
In the case of Jewel v. NSA, the Electronic Frontier Foundation is suing the federal government over widespread illegal surveillance of Americans' phone calls and other communication. In the case, former AT&T technician Mark Klein has testified that his old employer actually routs Internet traffic through a specific facility so that government spooks have easy access.
Summary judgment for the Government on all of plaintiffs’ remaining claims against all parties is required because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in this case by the state secrets privilege."
In response, the federal government, under first President George W. Bush, and now President Barack Obama, argues that the merits of the case don't matter, because the government's conduct is beyond the reach of the courts. According to a motion to dismiss filed on April 3 (PDF):
The grounds for this motion are that the Court lacks subject matter jurisdiction with respect to plaintiffs’ statutory claims against the United States because Congress has not waived sovereign immunity, and summary judgment for the Government on all of plaintiffs’ remaining claims against all parties (including any claims not dismissed for lack of jurisdiction) is required because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in this case by the state secrets privilege and related statutory privileges.
The government is effectively arguing that it can act with impunity because the evidence that the government has misbehaved is a secret that can't be used to seek to demonstrate violations of the law or the Constitution and to seek redress.
Did the feds abuse your rights? Too bad, they say, because you won't be allowed to prove it in court.
That's a remarkably pernicious argument, since it effectively puts government action beyond scrutiny. Erwin Chemerinsky, dean of the law school at the University of California-Irvine, describes “state secrets” as a sort of "talismanic phrase" used to muzzle challenges to government authority without going through the bother of actually debating the merits or legality of particular actions and policies.
The Obama administration didn't create the state secrets doctrine, of course. The idea was concocted in the mid-twentieth century and then enthusiastically invoked under the Bush administration to put legally dubious actions beyond challenge by lawsuits or judicial review.
The Obama administration is now picking up where the Bush administration left off, demonstrating an apparent continuity in attitudes toward executive power from the last White House occupant to the current one.
If the courts let the state secrets argument stand, the end result may be that many constitutional and legal protections are reduced to empty words, unenforceable in the courts.
email J.D.: civilliberties (at) tuccille.com
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Comments
"Hope and change" = "dupe and scam."
What can you expect when the thugs make the rules AND control the courts. Free market courts are the way to go. Or only pay judges when they rule against the government.
Well, or maybe it's the exact opposite.
If no court ruling overturns the effectiveness of the state-secrets defense, then it's just up to the next president to abuse it. A case like this is necessary to set a precedent. This is why the ACLU defends some pretty despicable people. Same thing, just not obvious. It's about forcing the courts to decide. Can you honestly say that bluffing the Supreme Court into setting a precedent that this isn't allowed would be a bad outcome? If Libertarians end up owing the Obama administration the precedent that "state-secrets" is not a defense, I'll be giggling like a schoolgirl.
Similarly, I wonder how much of it is to get the same people that supported the state-secrets defense to recant when they're on the other side of the fence. Obama comes from a position of strength now, so he can burn some of it to put the opposition into the hypocrite camp.
Finally, the government may open itself up to various issues based on estoppel. You can't claim conflicting facts in different cases (or the same case). Even if the wanted to withdraw their defense, they may not be able to legally just reverse course. Law can be complex.
Now, it's entirely possible that Obama is just setting himself up to be a despot. It might be that he doesn't feel he can burn the political energy on this issue right now. Maybe he's just trusting the wrong adviser while he deals with something he sees as more important. Only he knows. However, I wouldn't be too quick to judge. Understanding the legal fallout of even the simplest maneuver is difficult in the extreme.
Mmmmm ... I can smell the "Change" and it stinks like hypocrisy.
Say hello to the new boss ... same as the old boss.
@Kent McManigal
Free Market Courts? Yeah.... that is not asking for a WHOLE new set of problems. Jeesh... Hey lets replace corruption with EVEN more corruption. Heck lets take it to the NEXT level of corruption and invent a whole new system of abuse.
@Henry Bowman
"Sit down and have a beer with him" = "Rip out the respect of the president and let this guy run things while I have that beer"
Don't like the way things are being done? Instead of just walking in and spouting BS, why don't you try to come up with something, oh like an idea. I'm tired of the auto-Obama bash. I didn't like it when it was done to Bush, despite my disagreeing with his actions, and I still don't like it when its done to someone else. Either step up or step out.
@article
The problem faced is if the State Secrets Doctrine is opened all the way, other things that are actually important secrets for the safety of our nation, will leak out. I think most fail to realize that this would be one of those "damned if you do damned if you don't" decisions. On one hand it could go down as one of the greatest Civil Liberties victories. On the other it could go down as the final stroke that broke the camels back. I for one would not want to make the decision, if forced to i know what I would take, but I'm not them.
If anyone thought that Obama was going to bring more transparency than Bush they should have their head examined. Typically big government guys like Obama are more concerned with expanding government power into every aspect of your life and are not exactly going to be advocates for the little people out there trying to take on the government in any area.
Obama and his cohorts will likely nominate judges are going to expand government power as this is a liberal tenant. It was sad to see that millions of the American Idol crowd just saw a snap shot of a television spot with the "Change" word in bold print and fell for it. I would fully expect civil liberties to erode over the next 4 years as a result of electing someone who thinks that government is the solution to everything.
Someone once said (I can't remember who) that the more a politician talks about “the people” and uses the word "people" the more harsh he/she will be on the “people”.
My biggest fear is that will take a long time to undo the damage Obama will have done to the nation in 4 years. He has mortgaged our children’s future on a very risky scheme to grab power under the pretense of a stimulus package. If you pick a part that stimulus package you will see a lot of the stimulating going to big government and not going to create jobs. Another fear is that he could tilt the courts to the left and really have intrusion into privacy and I would worry that the next target will be the internet coupled with the fairness doctrine to silence free speech.
Well one is no better than the other
well it was fun while it lasted
If anyone thought that a new puppet on the screen changed who directed the show, they need to go back to watching cartoons.
Electing a new person that spouts propaganda from the telescreen won't change how many rations you're going to get.
"Well one is no better than the other " - mike
Have you ever been asked the question Yes/No, "Do you're parents know you are stupid?" Well, either answer is a trick, much like the question "Vote for Republican or Democrat?" is, or asking which of two bad leaders you want.
If this is allowed to stand, the legitimacy of the entire US government will be undone. From the post office to the CIA, from the FDA to the Marines, it will be impossible to know what crimes have been committed or who can be trusted.
This was the single most important change that Obama needed to make, and instead he has chosen to confirm Cheney's principle of absolute rule. The US government is now, by its own reckoning, a criminal enterprise beholden to no law.
I don't know if I should worry or laugh at the fact that this article has 666 diggs as I type this comment. It will have 667 in a moment.
Matthew Brady
New Orleans Video Game Examiner
If the government cannot be held accountable for its actions by means of the law, then it will be subject to accountability at the hands of its people. After all, if they're not going to play by the rules, why should we ?
Jayson Vantuyl - nicely put. This issue will remain a hotly contested one until the Supremes have a chance to set precedent. It's better for that to happen sooner rather than later so we can put this issue to bed.
Of course this assumes that the current court will do the right thing, and that's far from certain.
Only Gomer Pyle would be surprised at this...
New boss-same as the old boss.
Expect the court to uphold this nonsense, demonstrating that checks and balances have been rendered merely a quaint notion; nice in appearance, but lacking in substance...
I think a lot of us agree: Big Gov. power guys Bush and Cheney were just replaced by bigger government guys: Obama and Biden- Hopefully some better candidates next time-
People, it isn't just our presidents and their administrations that do this. In many cases before the courts oft times the defendant is not allowed to present evidence, or to speak of the law he is accused of violating, nor the constitution, nor examine the evidence of the prosecution.
This kind of thing has been going on for a very long time. The Fincher case is one where the jury was not even allowed in the courtroom when the defense presented its case. The Olofson case is one where the evidence was not allowed to be examined by the defense, nor was the law.
Those are two recent and egregious cases, but by no means, isolated cases.
Claire Wolfe may need to look at her clock again.
Mark T quips, "If anyone thought that Obama was going to bring more transparency than Bush they should have their head examined."
What heads? A vast majority of Americans lost their heads around November of last year.
I am making a presumption this vast majority had heads to begin with.
All hail the Black Messiah! He is gonna save us!
...secretly save us.
Okpulot Taha
Choctaw Nation
Thank you for highlighting the most frightening link between the Old Administration and the New Administration... perhaps next you could take a look at the financing & lobbying parallels between the two admins. Keep up the good work.
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