Dispatches from the Creation Wars

Bruce Fein writes about a second case where the Obama administration has continued the Bush position and invoked the state secrets privilege in order to avoid judicial scrutiny, this time of the warrantless wiretapping program:

Mr. Obama invoked the state secrets privilege a second time last week to block litigation challenging the legality of the Bush-Cheney “Terrorist Surveillance Program” (TSP) that he had assailed as a senator. For five years, the TSP targeted American citizens on American soil for electronic surveillance on the president’s say-so alone to gather foreign intelligence in contravention of the warrant requirement of the Foreign Intelligence Surveillance Act (FISA). Intentional violations are federal felonies.


This is quite serious. Remember, invoking the state secrets privilege means that the case is just dismissed, that the plaintiff will never have their day in court at all, because the executive branch claims that allowing the case to go to trial will undermine national security even if the classified evidence is heard in camera or ex parte. Those are the traditional ways that the release of sensitive information is prevented in a court case involving national security.

Fein also writes of a case I haven’t heard of yet where Obama has apparently chosen to defend John Yoo against a lawsuit by Jose Padilla:

At the same time, Mr. Obama was deciding to defend the arch-defender of torture, former Deputy Assistant Attorney General John Yoo, from a suit brought by Jose Padilla. The complaint alleges that Mr. Yoo concocted the legal justification for detaining and harshly interrogating Padilla as an “enemy combatant” without accusation or trial. (The United States later recanted its enemy combatant allegation).

In the latter case, Politico says that the DOJ is obliged to defend Yoo in this case:

Obama’s lawyers aren’t the first at Justice to have to stand by a prior administration’s legal work — whether they agree with it or not — merely in the interest of protecting U.S. government prerogatives.

But the Bush war-on-terror team inspires particular antipathy in the liberal legal set — and none more than Yoo, who became a sort of symbol of the Bush administration’s efforts to construct a carefully crafted legal framework to justify practices that critics say are torture.

“When they go back to the privacy of their offices, they may wish that someone would draw and quarter John Yoo, but they have to wave the flag,” said a former federal terrorism prosecutor, Andrew McCarthy. “What they have to do is appear as if they are defending all the prerogatives of government that people want them to defend. … That’s the job of the Justice Department.”

I don’t buy that at all. There is no legal obligation at all, only a practical one. The administration should not be defending the “prerogatives” – i.e. power – of the government to do things the government cannot legally do.