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Thread: Pres. Obama continuing Bush admin legacy of immunity for warrantless wiretapping

  1. #31
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    Bill Clinton enabled a W presidency by allowing the crimes of Iran/Contra to go unpunished. The "Bush Legacy" would have been destroyed if that investigation had been allowed to go on to it's logical conclusion.

    Consortiumnews.com

    "Pragmatism" in the face of gross corruption is...gross corruption.

    Of course, there is always *"The Bill Hicks Moment" to keep a president in line. Who knows what goes on behind closed White House doors?

    *Bill Hicks famously said that he had "this feeling" that whoever's elected president,

    no matter what promises you make on the campaign trail - blah, blah, blah - when you win, you go into this smoky room with the twelve industrialist, capitalist scumfucks that got you in there, and this little screen comes down... and it's a shot of the Kennedy assassination from an angle you've never seen before, which looks suspiciously off the grassy knoll.... And then the screen comes up, the lights come on, and they say to the new president, 'Any questions?'

    "Just what my agenda is."

  2. #32
    Elite Member kingcap72's Avatar
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    Quote Originally Posted by Grimmlok View Post
    *BLINK*

    it's EXCEEDING Bush levels. That's what the problem is!




    bingo!
    Exceeding, how?

  3. #33
    Elite Member Grimmlok's Avatar
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    erm, go back and read. Hint: "one step further"
    I am from the American CIA and I have a radio in my head. I am going to kill you.

  4. #34
    Elite Member Fluffy's Avatar
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    Quote Originally Posted by kingcap72 View Post
    Exceeding, how?
    The sovereign immunity claim. The article Grim posted doesn't really cover the topic very well. Here's some clearer info.
    New and worse secrecy and immunity claims from the Obama DOJ

    When Congress immunized telecoms last August for their illegal participation in Bush's warrantless eavesdropping program, Senate Democratic apologists for telecom immunity repeatedly justified that action by pointing out that Bush officials who broke the law were not immunized -- only the telecoms. Here, for instance, is how Sen. Jay Rockefeller justified telecom immunity in a Washington Post Op-Ed:
    Second, lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House's year-long push for blanket immunity covering government officials.
    Taking them at their word, EFF -- which was the lead counsel in the lawsuits against the telecoms -- thereafter filed suit, in October, 2008, against the Bush administration and various Bush officials for illegally spying on the communications of Americans. They were seeking to make good on the promise made by Congressional Democrats: namely, that even though lawsuits against telecoms for illegal spying will not be allowed any longer, government officials who broke the law can still be held accountable.

    But late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.

    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.

    There are several notable aspects to what happened here with this new court filing from Obama:

    (1) Unlike in the prior cases where the Obama DOJ embraced the Bush theory of state secrets -- in which the Obama DOJ was simply maintaining already-asserted arguments in those lawsuits by the Bush DOJ -- the motion filed on Friday was the first response of any kind to this lawsuit by the Government. Indeed, EFF filed the lawsuit in October but purposely agreed with Bush lawyers to an extension of the time to respond until April, in the hope that by making this Obama's case, and giving his DOJ officials months to consider what to do when first responding, they would receive a different response than the one they would have gotten from the Bush DOJ.

    That didn't happen. 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. 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.

    (2) It is hard to overstate how extremist is the "soverign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying. As EFF's Kevin Bankston put it:
    This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.
    Since EFF's lawsuit is the first to sue for actual damages under FISA and the Wiretap Act, it's arguable whether this immunity argument applied to any of the previous lawsuits. What is clear, though, is that the Bush DOJ, in any context, never articulated this bizarre view that all claims of illegal government surveillance are immunized in the absence of "willful disclosure" to the public of the intercepted communications. This is a brand new Obama DOJ invention to blanket themselves (and Bush officials) with extraordinary immunity even when they knowingly break our country's surveillance laws.

    (3) Equally difficult to overstate is how identical the Obama DOJ now is to the Bush DOJ when it comes to its claims of executive secrecy -- not merely in substance but also tone and rhetoric (at least in the area of secrecy; there are still important differences -- no sweeping Article II lawbreaking powers and the like -- which shouldn't be overlooked). I defy anyone to read the Obama DOJ's brief here and identify even a single difference between what it says and what the Bush DOJ routinely said in the era of Cheney/Addington (other than the fact that Bush used to rely on secret claims of national security harm from Michael McConnell whereas Obama relies on secret claims filed by Dennis Blair). Even for those most cynical about what Obama was likely to do or not do in the civil liberties realm, reading this brief from the Obama DOJ is so striking -- and more than a little depressing -- given how indistinguishable it is from everything that poured out of the Bush DOJ regarding secrecy powers in order to evade all legal accountability.

    Don't take my word for that. I mean: really, don't. Instead, I'm going to excerpt just a few of the key passages from the Obama DOJ's brief to convey a sense of how absolute is the Obama administration's claims of executive power and secrecy rights -- remember: all advanced in order to demand that courts not consider any claims that the Bush administration broke the law in how it spied on Americans (click on images to enlarge):
    Obama DOJ Brief - Page 2:


    Obama DOJ Brief - Page 12:


    Obama DOJ Brief - Page 13:


    Obama DOJ Brief - Page 15:


    Obama DOJ Brief - Page 16:


    Obama DOJ Brief - Page 18:


    Every defining attribute of Bush's radical secrecy powers -- every one -- is found here, and in exactly the same tone and with the exact same mindset. Thus: how the U.S. government eavesdrops on its citizens is too secret to allow a court to determine its legality. We must just blindly accept the claims from the President's DNI that we will all be endangered if we allow courts to determine the legality of the President's actions. Even confirming or denying already publicly known facts -- such as the involvement of the telecoms and the massive data-mining programs -- would be too damaging to national security. Why? Because the DNI says so. It is not merely specific documents, but entire lawsuits, that must be dismissed in advance as soon as the privilege is asserted because "its very subject matter would inherently risk or require the disclosure of state secrets."

    What's being asserted here by the Obama DOJ is the virtually absolute power of presidential secrecy, the right to break the law with no consequences, and immunity from surveillance lawsuits so sweeping that one can hardly believe that it's being claimed with a straight face. It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior. As EFF's Bankston put it:
    President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties. But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a "secret" that cannot be reviewed by the courts, it feels like deja vu all over again.
    This is the Obama DOJ's work and only its work, and it is equal to, and in some senses surpasses, the radical secrecy and immunity claims of the Bush administration.

    -- Glenn Greenwald

    New and worse secrecy and immunity claims from the Obama DOJ - Glenn Greenwald - Salon.com

  5. #35
    Elite Member Fluffy's Avatar
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    UPDATE: Even better, Olbermann tonight will have on as a guest Kevin Bankston of EFF, the lead counsel for the plaintiffs suing Bush officials for illegal spying, which means Olbermann intends to cover this issue again tonight. Along with the ACLU and others, EFF has been truly heroic in defending the core constitutional liberties of Americans and serving as a key check on executive abuses. As I noted in Monday's post, this is what Bankston said on Monday after reading the Obama DOJ brief:
    President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties. But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a "secret" that cannot be reviewed by the courts, it feels like deja vu all over again.
    Serious credit to Olbermann for putting on Bankston tonight and thus continuing his coverage of this story, despite knowing that hordes of truly creepy Obama worshipers (see here -- post and comments) who spent the last several years venerating Olbermann (and people like Jonathan Turley) will now suddenly declare that they are untrustworthy, unreliable, hysterical hacks, etc. etc. -- all for saying exactly what they were saying in 2006 and 2007, but this time applying it to Obama rather than Bush.

    UPDATE II: One of Obama's most supportive boosters in the liberal blogosphere -- Booman -- emphatically condemns Obama for what his DOJ is doing in this case, and says "it is extremely disappointing, it is unjustifiable, and it is dangerous."

    Different people are going to have different views about how vigorously Obama should be criticized, how early that criticism should begin, how much benefit of the doubt he should be accorded, etc. That's all reasonable. Moreover, Obama is going to be better in some areas than others, so one's views of his presidency may very well be shaped by the areas on which one focuses most. Progressives who focus most on domestic budget policy are likely to have a more favorable view than those who focus on civil liberties, executive power abuses, the rule of law and the like. That, too, is perfectly reasonable.

    But where -- as here -- Obama embraces the very same extremist secrecy and immunity powers which provoked such intense criticism when Bush claimed those powers, any minimally honest person will react how Booman did. It is simply impossible for X to have been a hallmark of lawless tyranny when Bush did it but an understandable or tolerable action (or, worse, a routine fulfillment of one's duties) when Obama does it.
    Keith Olbermann's scathing criticism of Obama's secrecy/immunity claims - Glenn Greenwald - Salon.com

  6. #36
    Elite Member Grimmlok's Avatar
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    awesome. It's getting traction.
    I am from the American CIA and I have a radio in my head. I am going to kill you.

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    Elite Member Cali's Avatar
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    Can someone provide a summary of those cases? I'll see what I can find as well. It could be possible that maybe there really are state secrets that would come out if the case were pursued.

    I don't know. I'm just interested in hearing the basics of the cases before we get all wound up.

    Edit: nevermind, i just saw the summaries above. It pays to read the whole thread before commenting kids!

    Edit 2: actually request is back on! Those are just the Obama summaries. I'm interested in the original lawsuits against the gov. from the plaintiffs.

  8. #38
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    "State Secrets" = a bunch of illegalities they are trying to hide.

  9. #39
    Elite Member kingcap72's Avatar
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    Fluffy, thanks for posting those articles. Now, I get what Grim was saying. Yeah, this bullshit with the DOJ needs to stop now, and Obama's feet need to be held to the fire on this.

  10. #40
    Elite Member Fluffy's Avatar
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    An update
    Thursday April 9, 2009 19:32 EDT
    TPM: "Obama Mimics Bush on State Secrets"

    (updated below - Update II)

    I wasn't able to post today, but TalkingPointsMemo has done an excellent job in advancing the story of the Obama DOJ's inexcusable embrace of some of the most radical Bush/Cheney secrecy doctrines. First, here is the top headline at TPM right now:


    The first TPM post then says this:
    Working the Dark Side

    Why is Obama following Bush's lead on state secrets?
    That post, in turn, links to this excellent and comprehensive article on the controversy by TPM's Zachary Roth, which reports this:
    Is the Obama administration mimicking its predecessor on issues of secrecy and the war on terror? . . .

    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.
    That's rather definitive (my legal analysis of the Obama position was set forth here, on Monday). The TPM article then quotes numerous experts lambasting the Obama administration, including -- most amazingly -- Ken Gude, a national security law expert of the Center for American Progress (CAP). That's John Podesta's CAP, one of the most pro-Obama organizations in the country (Podesta was Obama's transition chief).

    Speaking to Marc Ambinder, Gude himself actually defended (or at least excused) Obama's first invocation of the state secrets privilege in the Jeppesen/rendition case back in February at a time when most civil libertarians were furious, insisting back then that the new Obama DOJ officials "deserve the benefit of the doubt" because they had been in office too short of a time to warrant any judgments being made. But so extreme and inexcusable are Obama's actions here that, now, even Gude pronounced Obama's position "disappointing" and described himself as "frustrated" and "uncomfortable" with the DOJ's actions. Moreover, to TPM, Gude "confirmed that the Obama-ites were taking the same position as the Bushies on state secrets questions" and added: ""There's going to be people who are very unhappy, and justifiably so."

    This controversy is clearly growing, as well it should. These radical theories were not ancillary to the liberal critique of Bush/Cheney lawlessness but central to it. Last night on CBS News, Katie Couric repeatedly asked Eric Holder about this issue, and -- as The Washington Independent's Daphne Evitar noted -- Holder was forced to say that he has reviewed the cases where the Obama administration invoked "state secrets" and agreed with virtually everything the Bush administration did in those cases with regard to that doctrine, making clear (as Evitar put it) "that the Obama administration [with the possible exception of one unnamed case] is unlikely to depart dramatically from the Bush administrationís position on the use of the state secrets privilege."

    The Bush administration's use of the "state secrets" privilege was the linchpin of its efforts to shield its criminality from judicial review and -- as Democrats, progressives and other Bush critics repeatedly argued -- was one of the principal prongs of its lawlessness and radicalism. Yet here is the Obama administration doing exactly the same thing and now admitting that they intend to continue to do so. Relatedly, Jim White digs up some election year Obama quotes to underscore what a betrayal of Obama's constant commitments these actions are.

    Finally, Keith Olbermann continued his excellent and rather tenacious coverage of this issue last night by asking Nancy Pelosi about the Obama position on state secrets and sovereign immunity and he extracted a muddled though still unambiguous decree that she found it objectionable and would engage in efforts to limit Obama's asserted powers (we'll see how true that ends up being). Last night, Olbermann also had on EFF's Kevin Bankston, who -- along with Olbermann -- excoriated Obama for not merely embracing, but surpassing, some of the worst Bush/Cheney abuses on secrecy and legal immunity for lawbreaking. On Monday afternoon, I asked the office of Russ Feingold -- who was endlessly vocal on these matters when Bush was President -- why he has been silent on this matter and whether he had any comment, and I've heard nothing back. In fairness, though, there is one impressive ally for the Obama DOJ: the highly prestigious and very well-regarded blog, RedState, which vigorously supports their position here.

    Ultimately, the responsibility to check executive power and secrecy abuses by the President lies with the Congress. In February, numerous members of both the Senate and House -- including Feingold and Arlen Specter -- re-introduced legislation that would substantially limit the President's ability to assert "state secrets" as a means of blocking judicial review of his conduct. When Bush was President, that legislation attracted numerous Democratic co-sponsors -- including Obama's Vice President Joe Biden and his Secretary of State, Hillary Clinton. Clearly, and quite regrettably, that law is needed as much now as it was in 2006 and 2007. Accountability Now, hopefully in conjunction with others, should have a campaign very soon to help bring this about as well as impose limits on Obama's recklessly broad assertions of legal immunity.

    UPDATE: In addition to Roth's TPM article, also very worth reading is this analysis from The Washington Post's Dan Froomkin, who says there "there is something utterly un-American" about Obama's position. As Roth concludes: "That looks like a pretty broad consensus in opposition to the Obama administration's position. And it's the opposite of change we can believe in."

    UPDATE II: Just in case anyone had any doubts about whether Obama himself personally approves of what his DOJ is doing, Robert Gibbs dispelled those at today's Press Briefing (h/t CarolynC and Sam Stein):
    Q. Last Friday, the Justice Department invoked the state secrets privilege in asking a judge to dismiss a civil suit filed against the National Security Administration regarding its domestic surveillance program. And in its brief, the Justice Department argued that Americans have no right to sue the government for alleged illegal surveillance.

    Does the President support the Justice Department's positions in that case?

    MR. GIBBS: Yes, absolutely. It's the -- absolutely does. Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.
    That was followed by this amazing exchange:
    Q. Before he was elected, the President said that the Bush administration had abused the state secrets privilege. Has he changed his mind?

    MR. GIBBS: No. I mean, obviously, we're dealing with some suits, and the President will -- and the Justice Department will make determinations based on protecting our national security.

    Q. So he still thinks that the Bush administration abused the state secrets privilege?

    MR. GIBBS: Yes.
    Given that Obama is doing exactly what Bush did in this area, Gibbs' claim that Obama "still thinks that the Bush administration abused the state secrets privilege" must be one of the most incoherent and intellectually dishonest claims to come from the White House since the Inauguration -- either that, or Obama believes that Bush abused the privilege and that he, Obama, is also doing so.

    -- Glenn Greenwald
    TPM: "Obama Mimics Bush on State Secrets" - Glenn Greenwald - Salon.com

  11. #41
    Elite Member witchcurlgirl's Avatar
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    Politicians you can't make this fucking shit up.

    they do one thing, then they stand there, and with straight faces tell you they're doing something else.



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    If I wanted the government in my womb I'd fuck a Senator

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    Elite Member Fluffy's Avatar
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    Right hand meet left hand!

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    Elite Member bychance's Avatar
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    Quote Originally Posted by Sasha View Post
    Anyone who thought Obama was going to save us all from the evil morass needs their head examined.
    Quote Originally Posted by kingcap72 View Post
    Bottom line, Obama's not the Messiah some people thought he would be and he's not the anti-Christ other people like to think he is. Imagine that.
    That's far right crap. I have yet to meet anyone who thought he was "the messiah". I've only heard Republicans/conservatives talk about it. You can't mock something that does not exist.

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    Elite Member Grimmlok's Avatar
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    *mocks god*

    yes you can
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  15. #45
    Elite Member Fluffy's Avatar
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    A few more bits:
    UPDATE III: Last night (Thursday), Sen. Feingold's office emailed me a statement from the Senator in which he said: "I am troubled that once again the Obama administration has decided to invoke the state secrets privilege in a case challenging the previous administration’s alleged misconduct." He added that "it is clear that there is an urgent need for legislation to give better guidance to the courts on how to handle assertions of the state secrets privilege," and that he is now working "to pass the State Secrets Protection Act [which I wrote about here] as soon as possible." Feingold's full statement is here.

    UPDATE IV: ABC News' Jake Tapper has a good write-up on this controversy and Obama's history of violating his own commitments when it comes to surveillance, accountability and secrecy powers, with this headline: "On 'State Secrets,' Meet Barack W. Obama."

    UPDATE V: Jake Tapper has more, here, on the still-growing controversy. I have requests in to numerous key Democratic members of Congress who vehemently opposed the Bush version of the state secrets privilege -- including Senate Judiciary Committee Chairman Pat Leahy and House Judiciary Committee Chairman John Conyers, as well as Sen. Sheldon Whitehouse -- for comment on what the Obama DOJ is doing. I will post those as I receive them. There is simply no legitimate excuse for members of Congress who objected to Bush's secrecy and executive power abuses to remain silent (or, worse, to offer excuses) when Obama does exactly the same thing.

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