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.

16 replies
  1. phred says:

    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…

  2. Jeff Kaye says:

    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.

      • Jeff Kaye says:

        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

  3. Jim White says:

    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.

    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.

    • bmaz says:

      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.

    • earlofhuntingdon says:

      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.

      • Jim White says:

        The quote was accurate but was carefully chosen as the most incendiary part. The commenters preferred the closing paragraph:

        If Obama has a conscience at all, he will be humbled by how early in his term as President he has been given this prestigious prize. I hope that this humbling allows him to realize that he was given this prize for who he is not. Will he accomplish enough of the goals described here that he might eventually be considered for a second prize on the basis of who he is?

  4. Jim White says:

    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?

    • bmaz says:

      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.

  5. Mary says:

    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.

  6. bobschacht says:

    I’m confused. Your headline is Obama DOJ Declines To Support Legality Of Bush Surveillance Program, but then you end your diary with

    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.

    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

    • knowbuddhau says:

      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.

      These are exciting days in Washington, as the government directs its energies to the demanding task of “containing Iran” in what Washington Post correspondent Robin Wright, joining others, calls “Cold War II.” [1]

      During Cold War I, the task was to contain two awesome forces. The lesser and more moderate force was “an implacable enemy whose avowed objective is world domination by whatever means and at whatever cost.” Hence “if the United States is to survive,” it will have to adopt a “repugnant philosophy” and reject “acceptable norms of human conduct” and the “long-standing American concepts of `fair play’” that had been exhibited with such searing clarity in the conquest of the national territory, the Philippines, Haiti and other beneficiaries of “the idealistic new world bent on ending inhumanity,” as the newspaper of record describes our noble mission. [2] The judgments about the nature of the super-Hitler and the necessary response are those of General Jimmy Doolittle, in a critical assessment of the CIA commissioned by President Eisenhower in 1954. They are quite consistent with those of the Truman administration liberals, the “wise men” who were “present at the creation,” notoriously in NSC 68 but in fact quite consistently.

      In the face of the Kremlin’s unbridled aggression in every corner of the world, it is perhaps understandable that the US resisted in defense of human values with a savage display of torture, terror, subversion and violence while doing “everything in its power to alter or abolish any regime not openly allied with America,” as Tim Weiner summarizes the doctrine of the Eisenhower administration in his recent history of the CIA. [3] And just as the Truman liberals easily matched their successors in fevered rhetoric about the implacable enemy and its campaign to rule the world, so did John F. Kennedy, who bitterly condemned the “monolithic and ruthless conspiracy,” and dismissed the proposal of its leader (Khrushchev) for sharp mutual cuts in offensive weaponry, then reacted to his unilateral implementation of these proposals with a huge military build-up. The Kennedy brothers also quickly surpassed Eisenhower in violence and terror, as they “unleashed covert action with an unprecedented intensity” (Wiener), doubling Eisenhower’s annual record of major CIA covert operations, with horrendous consequences worldwide, even a close brush with terminal nuclear war. [4]

      But at least it was possible to deal with Russia, unlike the fiercer enemy, China. The more thoughtful scholars recognized that Russia was poised uneasily between civilization and barbarism. As Henry Kissinger later explained in his academic essays, only the West has undergone the Newtonian revolution and is therefore “deeply committed to the notion that the real world is external to the observer,” while the rest still believe “that the real world is almost completely internal to the observer,” the “basic division” that is “the deepest problem of the contemporary international order.” But Russia, unlike third word peasants who think that rain and sun are inside their heads, was perhaps coming to the realization that the world is not just a dream, Kissinger felt.

      Not so the still more savage and bloodthirsty enemy, China, which for liberal Democrat intellectuals at various times rampaged as a “a Slavic Manchukuo,” a blind puppet of its Kremlin master, or a monster utterly unconstrained as it pursued its crazed campaign to crush the world in its tentacles, or whatever else circumstances demanded. The remarkable tale of doctrinal fanaticism from the 1940s to the ‘70s, which makes contemporary rhetoric seem rather moderate, is reviewed by James Peck in his highly revealing study of the national security culture, Washington’s China.

      [1] Wright, WP, July 29 07
      [2] Correspondent Michael Wines, NYT, June 13, 1999. Doolittle report, Tim Weiner, Legacy of Ashes: the History of the CIA, Doubleday 2007
      [3] Ibid., 77.
      [4] Ibid., 180.

      Cold War II

      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?

      STEPHEN JAY GOULD: The collapse of the doctrine of one gene for one protein, and one direction of causal flow from basic codes to elaborate totality, marks the failure of reductionism for the complex system that we call biology — and for two major reasons.

      First, the key to complexity is not more genes, but more combinations and interactions generated by fewer units of code — and many of these interactions (as emergent properties, to use the technical jargon) must be explained at the level of their appearance, for they cannot be predicted from the separate underlying parts alone. So organisms must be explained as organisms, and not as a summation of genes.

      Second, the unique contingencies of history, not the laws of physics, set many properties of complex biological systems…. Humbled by the Genome’s Mysteries

      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.

Comments are closed.