I wouldn't have drafted the legislation like this, and it does not resolve all of the concerns that we have about President Bush's abuse of executive power. It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses.
Here, Glenn Greenwald explains, is the stunning reversal in recent Obama Administration DOJ filings on the issue:
The Obama administration has, yet again, asserted the broadest and most radical version of the "state secrets" privilege -- which previously caused so much controversy and turmoil among loyal Democrats (when used by Bush/Cheney) -- to attempt to block courts from ruling on the legality of the government's domestic surveillance activities. Obama did so again this past Friday -- just six weeks after the DOJ announced voluntary new internal guidelines which, it insisted, would prevent abuses of the state secrets privilege. Instead -- as predicted -- the DOJ continues to embrace the very same "state secrets" theories of the Bush administration -- which Democrats generally and Barack Obama specifically once vehemently condemned -- and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law.
The case of Shubert v. Bush is one of several litigations challenging the legality of the NSA program, of which the Electronic Frontier Foundation is lead coordinating counsel. The Shubert plaintiffs are numerous American citizens suing individual Bush officials, alleging that the Bush administration instituted a massive "dragnet" surveillance program whereby "the NSA intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government" and that "the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant" (page 4). The lawsuit's central allegation is that the officials responsible for this program violated the Fourth Amendment and FISA and can be held accountable under the law for those illegal actions.
Rather than respond to the substance of the allegations, the Obama DOJ is instead insisting that courts are barred from considering the claims at all. Why? Because -- it asserted in a Motion to Dismiss it filed on Friday -- to allow the lawsuit to proceed under any circumstances -- no matter the safeguards imposed or specific documents excluded -- "would require the disclosure of highly classified NSA sources and methods about the TSP [Terrorist Surveillance Program] and other NSA activities" (page 8). According to the Obama administration, what were once leading examples of Bush's lawlessness and contempt for the Constitution -- namely, his illegal, warrantless domestic spying programs -- are now vital "state secrets" in America's War on Terror, such that courts are prohibited even from considering whether the Government was engaging in crimes when spying on Americans.
Here's an excerpt from the brief filed by the Electronic Frontier Foundation on behalf of the plaintiffs:
Defendant's argument is breathtaking. If the Executive successfully uses the state secrets privilege to dismiss this case at the pleading stage, there will be virtually no check left upon the ability of an overly-aggressive Executive to violate the rights of ordinary Americans.
Here is the response from all the folks--both locally and nationally--who were so stridently agonizing over President Bush's destruction of the US Constitution: