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View Full Version : obama admin protects bush & cheney on torture, expands warentless wiretapping


saz
04-08-2009, 05:09 PM
it was great to see olbermann calling out the obama administration last night (http://www.msnbc.msn.com/id/3036677/#30096316).

next up was george washington university constitutional scholar jonathan turley, who also put the obama adminsintration in its place (http://www.msnbc.msn.com/id/3036677/#30096358) for this blatant cop-out.



Obama Administration Quietly Expands Bush's Legal Defense of Warrantless Wiretapping

By John Byrne, Raw Story. Posted April 8, 2009


In a legal filing on Friday, Obama lawyers claimed the government is shielded from lawsuits by a 'sovereign immunity' clause in the Patriot Act.

In a stunning defense of President George W. Bush's warrantless wiretapping program, President Barack Obama has broadened the government's legal argument for immunizing his Administration and government agencies from lawsuits surrounding the National Security Agency's eavesdropping efforts.

In fact, a close read of a government filing last Friday reveals that the Obama Administration has gone beyond any previous legal claims put forth by former President Bush.

Responding to a lawsuit filed by a civil liberties group, the Justice Department argued that the government was protected by "sovereign immunity" from lawsuits because of a little-noticed clause in the Patriot Act. The government's legal filing can be read here (PDF) (http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf).

For the first time, the Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of U.S. law. They maintain that the government can only be sued if the wiretaps involve "willful disclosure" -- a higher legal bar.

"A 'willful violation' in Section 223(c(1) refers to the 'willful disclosure' of intelligence information by government agents, as described in Section 223(a)(3) and (b)(3), and such disclosures by the Government are the only actions that create liability against the United States," Obama Assistant Attorney General Michael Hertz wrote (page 5 (http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf)).

Senior Staff Attorney Kevin Bankston at the Electronic Frontier Foundation, which is suing the government over the warrantless wiretapping program, notes that the government has previously argued that changes to the Patriot Act protected the government from lawsuits surrounding eavesdropping. But he says that this is the first time that they've made the case that the Patriot Act protects the government from all surveillance statutes.

"They are arguing this based on changes to the law made by the USA PATRIOT Act, Section 223," Bankston said in an email to Raw Story. "We've never been fans of 223 -- it made it much harder to sue the U.S. for illegal spying, see an old write-up of mine at: http://w2.eff.org/patriot/sunset/223.php --but no one's ever suggested before that it wholly immunized the U.S. government against suits under all the surveillance statutes."

Salon columnist and constitutional scholar Glenn Greenwald -- who is generally supportive of progressive interpretations of the law -- says the Obama Administration has "invented a brand new claim" of immunity from spying litigation.

"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," Greenwald wrote Monday.

He also argues that the Justice Department's response is exclusively a product of the new Administration, noting that three months have elapsed since President Bush left office.

"This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials," Greenwald wrote. "Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance."

"Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of 'state secrets' to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself," he adds.

Both the Electronic Frontier Foundation and the American Civil Liberties Union say the "sovereign immunity" claim in the context of the case goes farther than any previous Bush Administration claims of wiretap immunity.

Writing about the changes to the Patriot Act last year, the EFF (http://w2.eff.org/patriot/sunset/223.php) asserted that revisions to the Act involved troubling new developments for U.S. law.

"Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping," the Foundation wrote. "That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court."

Moreover, they said, "Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 significantly reduced a judge's ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!"

The Obama Administration has not publicly commented on stories that revealed their filing on Monday.


link (http://www.alternet.org/rights/135605/obama_administration_quietly_expands_bush%27s_lega l_defense_of_warrantless_wiretapping/)

DroppinScience
04-08-2009, 05:16 PM
Greenwald also highlighted Olbermann's scathing critique.

http://www.commondreams.org/view/2009/04/08-14

Published on Wednesday, April 8, 2009 by Salon.com
Keith Olbermann's Scathing Criticism of Obama's Secrecy/Immunity Claims

by Glenn Greenwald

Several weeks ago, I noted that unlike the Right -- which turned itself into a virtual cult of uncritical reverence for George W. Bush especially during the first several years of his administration -- large numbers of Bush critics have been admirably willing to criticize Obama when he embraces the very policies that prompted so much anger and controversy during the Bush years. Last night, Keith Olbermann -- who has undoubtedly been one of the most swooning and often-uncritical admirers of Barack Obama of anyone in the country (behavior for which I rather harshly criticized him in the past) -- devoted the first two segments of his show to emphatically lambasting Obama and Eric Holder's DOJ for the story I wrote about on Monday: namely, the Obama administration's use of the radical Bush/Cheney state secrets doctrine and -- worse still -- a brand new claim of "sovereign immunity" to insist that courts lack the authority to decide whether the Bush administration broke the law in illegally spying on Americans.

The fact that Keith Olbermann, of all people, spent the first ten minutes of his show attacking Obama for replicating (and, in this instance, actually surpassing) some of the worst Bush/Cheney abuses of executive power and secrecy claims reflects just how extreme is the conduct of the Obama DOJ here. Just as revealingly, the top recommended Kos diary today (voted by the compulsively pro-Obama Kos readership) is one devoted to attacking Obama for his embrace of Bush/Cheney secrecy and immunity doctrines (and promoting the Olbermann clips). Also, a front page Daily Kos post yesterday by McJoan vehemently criticizing Obama (and quoting my criticisms at length) sparked near universal condemnation of Obama in the hundreds of comments that followed. Additionally, my post on Monday spawned vehement objections to what Obama is doing in this area from the largest tech/privacy sites, such as Boing Boing and Slashdot.

This is quite encouraging but should not be surprising. As much as anything else, what fueled the extreme hostility towards the Bush/Cheney administration were their imperious and radical efforts to place themselves behind an impenetrable wall of secrecy and above and beyond the rule of law. It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.

To be clear: there are important areas in which Obama has been quite commendable, and I've personally praised him fairly lavishly for those actions (see, for instance, here, here and here), but it is simply unacceptable -- no matter what else is true about him -- for Obama to claim for himself the very legal immunity and secrecy powers which characterized and enabled the worst excesses of Bush lawlessness. Yet in a short period of time, he has taken one step after the next to do exactly that.

The Olbermann segments, which are really worth watching, highlight the exact passages of the Obama DOJ's brief which I excerpted and posted on Monday, and underscore how intolerable the Obama administration's conduct in the area of transparency and civil liberties has increasingly become. Credit to Olbermann for highlighting this issue and commenting on it with such unrestrained candor. This should help galvanize greater action to make clear to the Obama administration that this conduct is completely unacceptable, and -- with Accountability Now, FDL and others -- I expect there to be some specific actions announced very shortly to begin pushing back, hard, against these serious transgressions.

saz
04-28-2009, 11:54 AM
keith nails it, puts obama in his place on torture (http://www.youtube.com/watch?v=LU1eURe1wus)