Except that in cases of state secrets, the shredding of the US Constitution continues unabated under Barack Obama.
From the Washington Independent:
When the Obama administration last week claimed that the executive’s “state secrets” privilege requires dismissal of a case challenging the Bush administration’s warrantless wiretapping program, the move rang alarm bells.
It was the second time that the new administration had asserted “state secrets” to try to dismiss a challenge to a program of its predecessor that is widely believed to have been illegal. In the first case, concerning the CIA’s “extraordinary rendition” of terror suspects, the Obama administration said the program itself was a secret, so the claims of four victims against Jeppesen Dataplan, the Boeing subsidiary that helped the CIA carry it out, had to be dismissed.
Then last Friday, in a case that’s gotten far less attention, Al Haramain Islamic Foundation v. Obama, the Department of Justice filed an emergency motion in the Ninth Circuit Court of Appeals to assert that, similarly, the Bush administration’s domestic warrantless wiretapping program is a state secret, and that to allow its victims access to information that would let them sue the government would endanger national security. Today, the appeals court denied the government’s emergency request to block release of the documents.
The case involves the Al Haramain Islamic Foundation, a Saudi Arabian charity that had an office in Ashland, Oregon until the the Treasury Department in 2004 decided it was funneling money to terrorists and shut it down. But in the process of trying to demonstrate the group’s terrorist ties, the government inadvertently released a classified document to the group’s lawyers that the lawyers say revealed that the government had been wiretapping them without a warrant.
The central issue in the appeal filed last week was whether the state secrets privilege, which allows the head of an executive agency to withhold certain evidence to protect national security, prevails over the requirements of the Foreign Intelligence Surveillance Act passed by Congress, which requires the government to get a warrant before wiretapping. In other words, when the president claims that national security is at stake, does he have to follow the law?
“I did not expect this from the Obama justice department,” said Jon Eisenberg, a lawyer representing Al Haramain. “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done. They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”
“It’s important to understand the significance of the state secrets doctrine,” explained Marc Rotenberg, Executive Director of the Electronic Privacy and Information Center. “This is a very powerful and in some respects very dangerous legal theory. The Executive is saying that for reasons we assert that cannot be contested, this matter should not be heard by the judiciary.”
The Bush administration raised the State Secrets defense 20 times in eight years.
At this rate, the Obama administration is on pace to break that record.