Civil liberties advocates are accusing the Obama administration of forsaking campaign rhetoric and adopting the same expansive arguments that his predecessor used to cloak some of the most sensitive intelligence-gathering programs of the Bush White House.
The first signs have come just weeks into the new administration, in a case filed by an Oregon charity suspected of funding terrorism. President Obama‘s Justice Department not only sought to dismiss the lawsuit by arguing that it implicated “state secrets,” but also escalated the standoff — proposing that government lawyers might take classified documents from the court’s custody to keep the charity’s representatives from reviewing them.
The suit by the al-Haramain Islamic Foundation has proceeded further than any other in challenging the use of warrantless wiretaps, threatening to expose the inner workings of that program. It is the second time the new Justice Department has followed its predecessors in claiming the state-secrets privilege, which would allow the government to exclude evidence in a civil case on grounds that it jeopardizes national security.
U.S. District Judge Vaughn R. Walker in San Francisco has resisted Justice Department attempts to claim the state-secrets privilege, making it one of the only cases to survive such a government challenge. Over the past eight years, authorities successfully invoked that argument dozens of times to prevent civil liberties groups from winning access to highly classified materials on a range of topics, including secret overseas prisons for terrorism suspects and warrantless wiretapping of U.S. citizens.
In his campaign plan to “change Washington,” Obama criticized the Bush administration, saying that it had “ignored public disclosure rules” and that it too often invoked the state-secrets privilege, according to his Web site.
The hypocrisy is one thing, but it’s the escalation that really seals the deal:
In the al-Haramain case, Obama has not only maintained the Bush administration approach, but the dispute has intensified, with the Justice Department warning that if the judge does not change his mind, authorities could spirit away the top-secret documents.
“Any way you look at it, it’s pretty remarkable,” said Jon B. Eisenberg, an attorney for al-Haramain. “This is an executive branch threat to exercise control over a judicial branch function.”
In the waning days of the Bush administration, the judge ordered the government to grant security clearances to al-Haramain lawyers, which it did. But Obama’s Justice Department lawyers and NSA officials continue to resist the orders to draft a plan for how the case could move forward.
When a reporter can credibly write a paragraph explaining how Obama “intensified” a Bush approach and is refusing to comply with an order with which Bush complied, what does that say about his Presidency?