When the Obama administration took office, many people hoped it would relinquish, or at least not assert aggressively, some of the more extravagant expansions of executive power the Bush administration seized in fighting the global “war on terror” and the misbegotten war in Iraq.
We had few such hopes. Presidents of both major parties may denounce predecessors’ unwarranted power-grabs during political campaigns, but once in office they are usually more than happy to exercise all the power their predecessors used, and more.
Unfortunately, it looks as if our skepticism was justified.
Remember the massive program of wiretapping without a warrant the Bush administration asked the National Security Agency to undertake shortly after 9/11?
The program was in clear violation of the Foreign Intelligence Surveillance Act of 1978, which set up a special secret court to grant warrants to do wiretapping of foreign enemies, adversaries or suspected spies. The Bush administration later argued the procedure was too cumbersome in the era of stateless terrorism. Instead of asking Congress — which eagerly passed the misnamed Patriot Act without in most cases even reading it — to amend FISA, the Bush people simply circumvented it.
After the program was exposed, a number of people who suspected their privacy had been violated sued to get reliable information and to collect damages.
Led by the Electronic Frontier Foundation in San Francisco, a group of plaintiffs at first sued telephone companies that had cooperated with the massive domestic spying program, but Congress passed a law shielding the phone companies from liability. But those who believed they have been damaged are still able to sue the government, so a new suit was filed.
The Bush administration had sought to have the lawsuit dismissed before it was even heard through asserting what it called the “state secrets” privilege, a claim that any information the government might be forced to reveal during court proceedings would jeopardize national security. Given that federal courts handle classified information in chambers or in closed sessions fairly routinely, this was an extravagant claim, something of a pre-emptive strike against any citizen who objected to violations of privacy.
Surely, the liberal Obama administration, with its exquisite concern for civil liberties, would abandon this extreme judicial maneuver, especially since the claims had to do with alleged abuses by the Bush administration.
No such luck.
Last week, in federal district court in San Francisco, Justice Department lawyer Anthony Coppolino asserted precisely the same state-secrets privilege in a motion to dismiss the case before it got started. The new administration “does not intend to use the state-secrets privilege to cover up illegal activities,” Coppolino assured Chief U.S. District Judge Vaughn Walker. But these are trying times still, and “the sources and methods of detecting terrorist attacks … the crown jewel of the United States national security administration,” must be kept away from the prying eyes of mere citizens who are forced to pay for them and are affected by them.
Here’s the problem: If Judge Walker accepts the government’s claim and dismisses the case, there will be no way of knowing whether the privilege was invoked to hide illegal activity.
Whether the Obama administration, which has obviously continued unwarranted electronic surveillance, is doing anything illegal could be revealed during the litigation. But if this case is thrown out of court, the question will not be subjected to any independent inquiry.
Presidents Obama and Bush are different in a number of ways, but in their apparent lust for expanded and unaccountable executive power, they are as one.