Obama Defends Domestic Surveillance

Caleb Hamman
chamman@butler.edu

As described in chapter five of The End of the American Century, undemocratic trends in the U.S. political system are having immense effect in furthering American decline.

The Bush II administration deserves substantial culpability. Decider & Co. scissored the democratic fabric as they exacerbated economic inequality, infringed upon the rights of American citizens, and ruled by fiat decrees issued from a hierarchical decision-making structure.

Conversely, the Obama administration has brought about some welcome developments. A grassroots presidential campaign, an end to torture, and a more transparent governing style are some recent democratizing measures that bode well for the U.S. political system.

Still, other actions have been less than reassuring. Among the most ominous has been Obama’s refusal to depart from the Bush status quo on the issue of domestic surveillance.

Since January, the Obama Justice Department (DOJ) has taken action to ensure the legality of Bush’s domestic spying policies will go unquestioned, the details of the program will remain unknown, and surveillance practices will remain institutionalized for possible use by future administrations.

Supporting evidence is provided in abundance by the DOJ’s record in the ongoing Al-Haramain court case.

Wendell Belew and Asim Ghafoor, former lawyers for the now defunct Al-Haramain Islamic Foundation, sued the Bush administration after they accidentally received documentation from the Treasury Department revealing that they had been subject to warrantless surveillance in 2004.

To review, Bush’s domestic surveillance program, operating without the use of warrants, was in direct violation of the Foreign Intelligence Surveillance Act of 1978 (FISA) which permitted domestic surveillance only in the case of a court order. Bush’s spying policies were unquestionably illegal. His own DOJ refused to certify them and his attorney general, John Ashcroft, threatened to resign if they were continued (1).

To date, Bush’s spying program has withstood attacks against its legality by employing a clever bit of sophistry. The defenders of surveillance essentially argue:

1. No one can bring suit against the program who does not have standing.
2. No one can claim they have standing (because no one knows they have been spied on).
3. No one can be told they were spied on because the information is a “state secret.”

Because of its unlooked for gift from the Treasury Department, the Al-Haramain case appeared to be the first with substantial promise to penetrate this circular reasoning—at least until the Bush administration declared the document a “state secret” and Al-Haramain was forced to return it to the Treasury Department by court order (2).

For three years, the Bush administration continued to assert the state secrets privilege and thus prevent Al-Haramain from proving the standing necessary to question the legality of the surveillance program.

Recently things began to take a different turn. Last July, U.S. District Judge Vaughn Walker ruled that the state secrets privilege didn’t apply to the Al-Haramain case. Then, on Jan. 5, Walker ruled that, with some minor qualifications, Al-Haramain’s lawyers should be given access to the controversial document in order to establish standing.

Enter the Obama administration. Writing last week in Salon, Al-Haramain’s lawyer Jon Eisenberg described how Obama’s election had given the plaintiffs “hope” that they would see some “change we can believe in” in “the Justice Department’s handling of the case under Attorney General Eric Holder” (3).

Perhaps Al-Haramain’s lawyers had taken heart from Obama’s campaign Web site. Herein, “The Plan to Change Washington” describes one aspect of “The Problem” as being “Secrecy Dominates Government Actions” (4).

Specifically, “The Bush administration has ignored public disclosure rules and has invoked a tool known as the "state secrets" privilege more than any other previous administration to get cases thrown out of civil court.”

Despite its rhetoric, Eisenberg testifies that Obama’s Justice Department “has continued to assert the state secrets privilege in the Al-Haramain case, even though Judge Walker ruled last July that the privilege does not apply.”

Also writing in Salon, constitutional and civil rights lawyer Glen Greenwald describes how “the Obama DOJ” is “not merely trying desperately to keep the Bush administration’s spying activities secret, and not merely devoting itself with full force to preventing disclosure of relevant documents concerning this illegal program, but far worse, doing everything in its power to prevent any judicial adjudication as to whether the Bush administration broke the law by spying on Americans without warrants” (5).

Greenwald details how “Obama lawyers have been running around for weeks attempting one desperate, extreme measure after the next to prevent this case from proceeding—emergency appeals, requests for stays, and every time they lose, threats of still further appeals.”

The process reached a climax late last month. On Feb. 27th, the Ninth Circuit Court of Appeals rejected an emergency request by Obama’s DOJ to halt further proceedings before Judge Walker. This ruling effectively ensured that Al-Haramain’s lawyers would have access to the top-secret document necessary to prove standing.

At this point, Obama’s lawyers took unprecedented action. According to Eisenberg, “they informed Judge Walker in a public court filing that if he intends to give us access to the secret filings in the case, the government will ‘withdraw that information from submission to the court’.”

As Eisenberg describes, this statement implies that “executive branch authorities (who? the FBI? the army?) will attempt to seize the documents from Judge Walker”—something that would be “a violation of the constitutional separation of powers, unprecedented in this nation’s history.”

From its actions in the Al-Haramain case, it seems quite clear that the Obama administration has chosen to defend the Bush status quo on domestic surveillance. Legal arguments aside, it’s a rather disturbing decision—one preventing the achievement of justice for past crimes and effectively guaranteeing that domestic surveillance practices will be available to future administrations.

It’s less than clear why the Obama administration has elected this position. It’s not as if they’ve merely invoked "state secrets" in order to protect a few pieces of sensitive information; rather, in exactly the same fashion as Bush, they’ve employed the privilege to have undesirable cases thrown out in their entirety, ensuring that the legality of domestic surveillance will never meet serious challenge.

At best, Obama’s surveillance policy is simply representative of a hesitancy to investigate past crimes. At worst, it’s an attempt to retain expanded, illegal powers for the executive branch and a tacit approval of establishing an above-the-law presidency effectively immune from judicial restraint.

Unfortunately, the context of past actions seems to rule out the least of all evils. Obama voted for the 2008 FISA amendments—bestowing legitimacy on surveillance practices and described by Yale Law School Professor Jack Balkin as “byzantine” and giving “new powers” to the presidency that are “either sketchy or opaque” and “will have to be worked out” by “the executive branch” (6).