During the presidential campaign, Obama criticized Bush for being too quick to invoke the state secrets claim. But last Friday, his Justice Department filed a motion in a warrantless wiretapping lawsuit, brought by the digital-rights group EFF. And the Obama-ites took a page out of the Bush DOJ's playbook by demanding that the suit, Jewel v. NSA, be dismissed entirely under the state secrets privilege, arguing that allowing it go forward would jeopardize national security.
Coming on the heels of the two other recent cases in which the new administration has asserted the state secrets privilege, the motion sparked outrage among civil libertarians and many progressive commentators. Salon's Glenn Greenwald wrote that the move "demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used." MSNBC's Keith Olbermann called it "deja vu all over again". An online petition -- "Tell Obama: Stop blocking court review of illegal wiretapping" -- soon appeared.
Not having Greenwald's training in constitutional law (and perhaps lacking Olbermann's all-conquering self-confidence), we wanted to get a sense from a few independent experts as to how to assess the administration's position on the case. Does it represent a continuation of the Bushies' obsession with putting secrecy and executive power above basic constitutional rights? Is it a sweeping power grab by the executive branch, that sets set a broad and dangerous precedent for future cases by asserting that the government has the right to get lawsuits dismissed merely by claiming that state secrets are at stake, without giving judges any discretion whatsoever?
In a word, yes.
Ken Gude, an expert in national security law at the Center for American Progress, supported the administration's invocation of the state secrets claim when it was made earlier this year in an extraordinary rendition case. But its position in Jewel is "disappointing," Gude told TPMmuckraker, calling himself "frustrated."
Gude confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions. "They've taken the maximalist view that the judge has hardly any role in determining whether national security" would be compromised by the release of classified information," he said. "There's going to be people who are very unhappy, and justifiably so."
He added: "I'm very uncomfortable with the notion that the people who get to decide [whether national security would be jeopardized] is the government."
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