On Friday the U.S. Court of Appeals for the 9th Circuit rejected the federal government's latest attempt to block the most viable lawsuit challenging the Bush administration's illegal warrantless surveillance program. Glenn Greenwald slams the Obama administration for doggedly pressing the Bush administration's argument that the case cannot be tried without compromising national security:
Manifestly, the Obama DOJ has one goal and one goal only here: to prevent any judicial ruling as to whether the Bush NSA warrantless eavesdropping program was illegal. And they're engaging in extraordinary efforts to ensure that occurs….
Here we have the Obama DOJ…not merely trying desperately to keep the Bush administration's spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power even to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants.
Greenwald notes that the Obama administration's position flies in the faces of what Dawn Johnsen, Obama's nominee to head the Justice Department's Office of Legal Counsel, said a year ago about the danger posed by letting Bush's lawbreaking slide:
I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret. Remember that much of what we know about the Bush administration's violations of statutes…came first only because of leaks and news coverage. Incredibly, we still don't know the full extent of our government's illegal surveillance.
The Obama administration's obsructionism also seems to contradict the president's own position on Bush's decision to circumvent the Foreign Intelligence Surveillance Act (FISA). In December 2007, The Boston Globe asked the candidates for the Democratic and Republican nominations, "Does the president have inherent powers under the Constitution to conduct surveillance for national security purposes without judicial warrants, regardless of federal statutes?" Here is his reply:
The Supreme Court has never held that the president has such powers. As president, I will follow existing law, and when it comes to U.S. citizens and residents, I will only authorize surveillance for national security purposes consistent with FISA and other federal statutes.
Then again, here is what Obama had to say about a proposal by Sen. Patrick Leahy (D-Vt.) for a "truth and reconciliation committee" to investigate the Bush administration's illegal actions:
My view is also that nobody's above the law and, if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen.
But that, generally speaking, I'm more interested in looking forward than I am in looking backwards.
In January I welcomed Johnsen as a lawyer who might be (in her words) "prepared to say no to the President." A couple of years ago, I noted that the Bush had unsuccessfully pushed a state-secrecy argument in another FISA suit (although the ruling in favor of the plaintiffs in that case ultimately was overturned on lack-of-standing grounds). In 2007 I regretted that Congress (with then-Sen. Obama's support) had repealed the warrant requirement that Bush ignored.