timely quote

Patriotism means to stand by the country. It does not mean to stand by the president.

Theodore Roosevelt

Thursday, April 9, 2009

Obama DOJ asserting total "sovereign immunity" under Patriot Act

From the Electronic Freedom Foundation and Salon.com:

Wow. Remember when the liberals were complaining about Bush expanding FISA law for warrantless wiretaps and using the Patriot Act to get rid of civil rights? They just couldn't wait to get Obama in office so he could roll back all of Bushitler's unconstitutional power grabs and bring back personal privacy. Glen Greenwald (the same guy that wrote the Salon.com piece above) wrote a piece condemning Bush about this exact thing. Even presidential candidate Obama talked about how "no law supersedes the authority of the FISA court."

Well, I'm sure they're glad Obama is in now, and he's putting the 4th Amendment first in all his policies, especially when it comes to the the (now unmentionable) War on Terror.

What? He's not?

Friday evening, 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.

Sad as that is, it's the Department Of Justice's second argument that is the most pernicious. The DOJ claims 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.

So, Bush's DOJ used the phrase "state secrets" a lot, but Obama's DOJ says that not only are state secrets at risk if the government is sued, but that they are completely immune from suit for violating federal privacy laws.

From the Salon op-ed:

When Congress immunized telecoms last August for their illegal participation in Bush's warrantless eavesdropping program, Senate Democratic apologists for telecom immunity repeatedly justified that action by pointing out that Bush officials who broke the law were not immunized -- only the telecoms. Here, for instance, is how Sen. Jay Rockefeller justified telecom immunity in a Washington Post Op-Ed:

Second, lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House's year-long push for blanket immunity covering government officials.

Taking them at their word, EFF -- which was the lead counsel in the lawsuits against the telecoms -- thereafter filed suit, in October, 2008, against the Bush administration and various Bush officials for illegally spying on the communications of Americans. They were seeking to make good on the promise made by Congressional Democrats: namely, that even though lawsuits against telecoms for illegal spying will not be allowed any longer, government officials who broke the law can still be held accountable.

But now, it's different. Obama is in power and we can't have any piddly little lawsuits jeopardizing state secrets, now can we?

But late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.

So the Bush administration violated the 4th Amendment with the FISA warrantless wiretaps, which was bad, and now Obama is saying that the government is immune from prosecution. Change. It's a wonderful thing. I'm waiting for the Dems to start explaining why this is ok when it was evil before. You know, not even the HuffPo has touched this one.

So when Salon.com says something like this:
It is hard to overstate how extremist is the "sovereign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying.
when they used to say this:
The veto threat from the President [Bush] is so unbelievably corrupt and manipulative that if our national press had even the smallest amount of critical faculties and understanding of the issues, that veto threat would be a major story. After all, how can the President possibly threaten the country that he will veto a law that he himself has claimed for months is indispensable for Protecting Us All?
you know it has to be bad.

Man, I'm glad that Obama is bringing back the personal privacy that the evil Bush took away.

Jesus, ol' W has to be kicking back on his porch down in Texas and laughing. I know I'd laugh, but I'm too busy canceling my home phone.


Ex-Dissident said...

interesting stuff. there is only one goal for this government, and it is centralization of power. I really don't see any difference between these goons and Mussolini's fascists.

folly said...

It certainly seems like he's moving pretty quickly. Sounds like maybe it's time for some illegal secret meetings with his wife, some healthcare executives and some congressional members, huh?

Are you going to your local Tea Party?