Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Well, the case isn't new; the choice of the Obama administration to continue to invoke the broadest possible conception of the State Secrets Privilege, as they have done in numerous other cases, is. The case is Shubert v Bush, now Shubert v Obama, a class action suit against the government over its data mining program. The Bush administration invoked the SSP and now the Obama administration is doing the same thing.
This is one of the many similar cases being heard by Judge Vaughn Walker, a Reagan appointee who has not been very receptive to such arguments in the Jeppesen Dataplan or Al Haramain cases. And in case you were wondering if those new SSP guidelines issued by Eric Holder were actually going to change anything, here's your answer:
Attorney General Eric Holder said in a statement about the case, Shubert et. al v. Obama, that "there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people."The case is a class action suit brought by four Brooklynites alleging that the Bush administration engaged in wholesale dragnet surveillance of ordinary Americans in which they were unjustly caught because they regularly made phone calls and sent emails to individuals outside the U.S., specifically in the United Kingdom, France, Italy, Egypt, the Netherlands, and Norway.
Obama administration officials argued that even addressing or attempting to refute the plaintiffs' claim would require the administration "to disclose intelligence sources and methods, or the lack thereof."
Holder said he was invoking the privilege despite having outlined new policies and procedures last month containing new internal and external checks and balances for the Justice Department to follow before invoking the privilege, requiring "a thorough, multi-stage review and rely(ing) upon robust judicial and congressional oversight."
Now that's funny. He's claiming that the use of the SSP by the Obama administration is okay because it includes "robust judicial...oversight" while simultaneously arguing that the court must dismiss any case that comes before it the moment the executive branch invokes the SSP. As for Congressional oversight, that is utterly irrelevant; lawsuits are filed before courts, not before Congress.
Let's set the wayback machine to last year and look at the Obama campaign website on this very issue:
The Problem:Secrecy Dominates Government Actions: The Bush administration has ignored public disclosure rules and has invoked a legal tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court.
And yet there is not a single case in which the Bush administration invoked the SSP where Obama has not done the same thing. That sounds like the real problem.
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Well, of course they surveilled the guy regularly calling/emailing to Norway. We're all godless liberals over here, on our way into a moral abyss. Or something.
Posted by: KariA | November 3, 2009 10:00 AM
So I guess they consider showing this stuff to a judge, having him tell them it is illegal and that they should stop it, and then continuing to do it anyway is what they consider "robust judicial oversight"? What total bullshit; to ask that such an argument be made in his name betrays whatever scholarly ethics Mr. Obama may have once possessed.
Posted by: Julian | November 3, 2009 10:13 AM
Ed, keep up these sorts of posts, your understanding of the relevant matters really shines here. I appreciate it.
Is there any national conversation about this disturbing aspect of the Obama administration? (I am completely out of all news loops these months, intentionally, so I don't know).
Posted by: cm | November 3, 2009 10:36 AM
@ 3 - No, only some bloggers and the occasional NYT's editorial is keeping a handful of America apprised. The important piece that is missing is that no media people with access to the Executive Branch's political leaders are even asking questions on this and related federal court matters involving the Obama Administration.
Obama's Administration is able to act without any need to publically justify their acts. This aspect is worse than what was happening during the Bush Administration (I'm not claiming the Obama Admin are worse actors in this area than the Bush Admin, just that they are held even less accountable by the press than the press held the Bush Admin - which was also grossly insufficient).
Posted by: Michael Heath | November 3, 2009 11:26 AM
Keith Olbermann and Rachel Maddow have both slammed Obama on this issue too. Nationally recognized writers like Glenn Greenwald and Scott Horton have been all over it. The major civil liberties groups have too. But national political leaders have largely ignored it, as has the mainstream media.
Posted by: Ed Brayton | November 3, 2009 11:57 AM
Thanks, Ed and Michael. I'm a pretty optimistic person, but sadly I don't expect these issues to get any traction at all with the American people, and the Obama administration knows it, and so assumes (rightly) the have the same impunity the Bush administration enjoyed.
I would love to be wrong about this--could I be?
Posted by: cm | November 3, 2009 12:03 PM
This is bad for another reason, namely that it bolsters the claims of people who thought the Bush administration was justified in its illegal acts. I'm thinking something along the lines of, "See? Once Obama came to be president and found out how wonderfully useful these programs are, he realized he couldn't do without them!"
I assume that no, they're not particularly useful in Saving The American People From Scary Bogeymen. Rather, the driving force here is like it always is: never open up your actions for scrutiny, ever.
Posted by: Kris | November 3, 2009 3:26 PM
The government's been doing stuff it really shouldn't have been doing and no one wants to admit how bad things are, so everything's a "secret". Shall we start calling the president 'Dear Leader'?
Posted by: MadScientist | November 3, 2009 4:17 PM
Mencken said it a long time ago:
"The whole aim of practical politics is to keep the populace alarmed -- and hence clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary."
Posted by: John Monfries | November 3, 2009 5:31 PM
John Monfries @ 9 stated:
While I'm a Mencken fan I see no such behavior out of either the Obama Administration or the Democratic party nor do I see how this quote remotely applies to Obama's SSP arguments when considering the facts in-hand.
Posted by: Michael Heath | November 3, 2009 5:38 PM
This is the problem with our horribly fractured system. The job of the opposition party is to point to abuses such as these and scream like the pod people from Invasion of the Body Snatchers. Instead we have a system where the current crop of "loyal opposition" scream liberal, socialist, leftist, etc., when this administration and his actions are center-right -authoritarian (if you wanted to argue ideology). Previously any attempts to argue against these abuses were "anti-American," would get us all killed, and would lead to accusations that you want the terrorists to win.
Our system is broken, hopefully not irrevocably, but I'm not very optimistic right now.
Posted by: dogmeatib | November 3, 2009 5:38 PM
Michael Heath - I was responding to the comment about scary bogeymen.
As a non-American, I lack the detailed knowledge of US politics held by many here, but the following is my take on things for what it is worth.
Bogeymen are what it's about, isn't it (or at least was about at the beginning)? The whole basis for abuses like the Patriot Act was that the situation was so menacing that the government would do almost anything (including overriding the constitution without saying so) in order to "save the people". After all, in September 2001, "the whole world changed."
The latest action by the Obama DOJ is a follow-up from all that. I see the whole original Bush program - warrantless wiretaps, spying on Americans, the two wars, demonising critics etc - as stemming from 9/11, directly or indirectly. It's a matter for debate whether Bush's actions were indeed a cynical executive power-grab from the beginning or grew progressively bolder as the neo-cons saw what they could get away with.
I suppose what Kris is saying is that it is now more clearly a consolidation by Obama of both the extra powers obtained by Bush and of his unaccountability, and less clearly about the original bogeymen. Maybe so, but the bogeymen remain useful in justifying the persistent lack of legal accountability that Ed and others are complaining about.
Holder saying "protect the safety of the American people" is another way of tacitly invoking Mencken's hobgoblins. That's not to say there are no threats, but it's way too easy to call on such arguments to maintain and defend existing powers. Maybe Obama and Holder are less open on the matter, but I believe the "hobgoblin argument" lies behind the justifications for their position. I'm open to correction on this, but I'm not disposed to absolve the current Administration from maintaining the Bush-like scare-mongering. I see the SSP issue as linked to this (and reminiscent of the Nixon-era "national security" justification for that Administration's abuses.)
All politicians do this kind of thing - we're just suffering in Australia from yet another ridiculous overblown debate about the "threat" posed by a few hundred asylum-seekers in rickety boats (less understandable or excusable, in fact, than the American sense of threat).
Posted by: John Monfries | November 3, 2009 7:42 PM
John Monfries - The GOP has increasingly used the politics of fear to further their political agenda. However, I have not seen that out of either the Obama Administration or the Democratic party.
Certainly AG Holder and the President have continued to support the previous President's policies in the federal courts - unfortunately I believe. But what we don't see is lefty pundits or Democratic officials out in the media selling this agenda by attempting to instill fear in the populace. Instead the mainstream media is ignoring these issues and the Democrats seem to prefer not even bringing it up. I.e., the Democrats are not using this issue to make political hay like the GOP does and still do.
At this point in time I know of no one who has come up with a compelling reason why the Democrats are continuing these policies, mostly because of the complete lack of communications coming out of party and Administration officials.
Posted by: Michael Heath | November 3, 2009 9:51 PM
John Monfries - thanks for your comments. Your interpretation of what I was getting at is correct, although I also mostly agree with Michael Heath's comments @ 13.
Michael Heath - My thinking differs in whether or not the Democrats are using "the politics of fear." I agree they're not overtly parading the idea. But they're still serving it by giving in to the idea that they're not supposed to appear "weak." That is, that they're not supposed to contradict any prior statements of how dangerous terrorists are, and they're certainly not supposed to suggest that "9/11 changed everything" and "a post-9/11 world" are infantile sentiments that serve only to try and keep people in a state of irrational fear and bigotry ("Terrorists are scary! Some terrorists are Muslim! All Muslims are scary!"). The only person I have any reasonable hope of breaking from the pack is Russ Feingold, the lone dissenter on the original PATRIOT act. Though I can't say I see him making any rumblings.
Also, John Monfries - people are fleeing to Australia in rickety boats? What kind of madness is this?
Posted by: Kris | November 4, 2009 4:03 PM