Dispatches from the Creation Wars

Okay folks, we’ve gone way past the time when one could hold out any hope for serious change from Obama when it comes to a whole range of constitutional issues. Time and time again, the Obama administration has adopted the same positions that Bush and Cheney advocated in court cases involving issues that are absolutely vital to our system of constitutional safeguards — government secrecy, executive power and the right of people to challenge the government in court.

I wrote in January about Judge Vaughn Walker, a Republican appointee, smacking down the Bush administration’s position in a case involving an Islamic organization that believes they were subjected to warrantless wiretaps. The Bush/Cheney position was that the state secrets privilege prevents the plaintiffs from having their day in court because they could not prove they were wiretapped unless the government releases classified information on who was wiretapped. The perfect catch-22.

Walker correctly ruled that if he were to accept the Bush administration’s position, that would render the FISA provisions providing for punishment for illegal surveillance by the government null and void. If no one can ever subpoena government documents showing they were the target of surveillance, no one could ever have standing to show that illegal surveillance took place and those provisions in FISA could never be enforced.

Walker ordered the Bush administration to turn over documents relating to surveillance of this particular organization to the court, to be reviewed by the judge. He also ordered them to review the plaintiff’s attorneys for a security clearance so they could look at the documents, and he ordered that all of this be done under seal so that classified information is not leaked to the public and is contained within the courtroom. All perfectly reasonable actions.

But now Bush is gone and Obama is in charge, so that’s going to change things, right? Wrong. In fact, the Obama administration is now refusing to turn over the documents that were ordered to be turned over while Bush was in power:

In the meantime, though, the Obama DOJ is now refusing to comply with the Judge’s order, actually arguing to the court that only the President can decide whether classified information can be used in a court proceeding, and that courts have no power to make such decisions.

They have filed a brief in the case taking precisely this position. Greenwald is rightly incensed:

As Marcy Wheeler documents in detail, the Obama DOJ is now spouting the Cheney/Addington view of government in its purest and most radical expression. Citing lengthy excepts from the Obama DOJ’s brief filed on Friday following its loss in the appeals court — a brief that could easily have been written by John Yoo or David Addington in its distinctly un-American and anti-constitutional theories purporting to vest unchallengeable, unreviewable power in the President — Wheeler writes:

This whole passage, read in the context of the wholesale rollback on Executive claims to have exclusive control over classified information just reeks of desperation. Not to mention an acceptance of Cheney’s contention that we have fewer than one–or even two–branches of government.

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President — and the President alone — who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding…

In the context in which Obama is now invoking this theory, think about what it means: if, as happened here, the President breaks the law, then he can just label the relevant evidence “classified” and refuse to turn it over to a court which is attempting to rule on the legality of the President’s actions. Once the President decrees that a court is barred from reviewing the relevant evidence because the President claims it is “classified,” that’s the end of that. It’s irrelevant that courts rule that the documents should be usable or even that Congress has created all sorts of mechanisms to enable federal courts to use classified information in judicial proceedings (including specific such procedures for FISA cases).

According to Obama, only the President has the power to decide what is done with classified information, and neither courts nor Congress have any power at all to do anything but politely request that the President change his mind. Therefore, the President has the unilateral, unchallengeable power to prevent any judicial challenges to his actions by simply declaring that the relevant evidence is a secret and refusing to turn it over to a court, even if ordered to do so. That’s the argument which the Obama DOJ is now aggressively advancing — all in order to block any judicial adjudication of Bush’s now-dormant NSA program.

When Greenwald says “the Obama administration’s approach to civil liberties, constitutional protections and the reining in of executive power abuses has been absolutely abysmal,” he may actually be understating the case. This will be the subject of my first interview on Declaring Independence on Thursday.