In Domestic Spying Case, Obama DOJ’s New Arguments Are Worse than Bush’s

Thursday, April 9, 2009


The people at the Electronic Frontier Foundation (EFF) make a sobering case why President Barack Obama’s Department of Justice’s new arguments in a case involving warrantless wiretapping are much worse than those made by former president George Bush.

In a motion to dismiss Jewel v. NSA, EFF’s litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration’s made two deeply troubling arguments.

First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue “would cause exceptionally grave harm to national security.” As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence.

It’s an especially disappointing argument to hear from the Obama Administration. As a candidate, Senator Obama lamented that the Bush Administration “invoked a legal tool known as the ‘state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.” He was right then, and we’re dismayed that he and his team seem to have forgotten.

Then, Obama’s Department Of Justice second argument is the most pernicious. They claim that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses “sovereign immunity” from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government’s ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any Federal statutes.

The gulf between Candidate Obama and President Obama is striking and growing in disparity. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ’s radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama’s own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

This isn’t change we can believe in. This is change for the worse.

This entry was posted in Bush Administration, FISA, News, Obama Administration, President Barack Obama and tagged , , , , , , . Bookmark the permalink.

8 Responses to In Domestic Spying Case, Obama DOJ’s New Arguments Are Worse than Bush’s

  1. Gerry Wright says:

    Why is it that a candidate can not or will not maintain campaign promises? Is it any wonder that people don’t care who gets in? Unfortunately, Obama convinced us all that he was different, got the people to care, and now we see more of the same. SHAMEFUL

  2. DMason says:

    Who is Barack Obama protecting? His predecessor or himself should he finds his administration in similar straights as Bush over the issue of domestic spying? The more I think about Obama’s DOJ, the less their position passes the smell test. I don’t like this, not one bit.

  3. I will be very happy when these same laws can be turned on the ruling class to make sure that they are incapable of mounting a contra-revolution after after after the tables have been turned and honest people are in charge rather than criminals.
    Peace be upon you
    The end
    ****************nothing follows*********************

  4. Walk on Socks says:

    The sense I get from Obama is he refuses to say anything bad about his predecessor and his predecessor refuses, in turn, to say anything bas about Obama.

    Each is a member of a special club and it requires a fair amount of mutual CYA and oh, the American people?

    They can go to hell.

  5. Conejo1982 says:

    I am growing more dissatisfied with Obama each day.

  6. Randy Arroyo says:

    All politicians lie. This is one of life’s certainties.

  7. Afrit007 says:

    One “aw, shit” cancels out ten “attaboys”. And this is one serious “aw, shit”.

    Obama needs to seriously reconsider this position before it bites him in the ass. His 64% approval rating won’t last forever, and if he keeps doing stuff like this it won’t take much longer for the facade to crack.

  8. RealWorldRadical says:

    “Why is it that a candidate can not or will not maintain campaign promises?”

    Because the populace is too stupid to elect someone who spoke the cold hard and very complex truths. A politician has to be either as dumb as the average voter, or smart enough to tell believable lies.

    But this year a particularly naive set of people voted, and they voted for simplistic lies over substance. The lessons to be learned are for the tacticians…but if you’re still young or foolish enough to be looking for honest politicians, you haven’t yet figured out the way the world now and likely forever works.

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