Worse than Bush?

Barack Obama has long marketed himself as a champion of transparency and open government, but, on two critical occasions during his young presidency, he has done the opposite of what he promised.

Not only have Obama's Justice Department lawyers echoed the secrecy arguments of the Bush administration, they have now gone beyond Bush - by essentially arguing, in a federal court brief filed last Friday, that the government can never be held accountable, under any statute, for the warrantless phone surveillance that was conducted against American citizens during the Bush era. Whereas the Bush team never made the case for total "sovereign immunity," the Obama team has.

The truth about Obama's transparency loopholes don't quite square with Obama's image. They certainly haven't drawn the public attention that they deserve, in part because the president hasn't been making any speeches about it. Understandably, from his perspective, it's better to let this issue play out backstage. But let's play it out here.

When Obama was a candidate seeking to nail down the anti-Bush Democratic base, he declared that, with respect to any post-9/11 violations of civil liberties, he supported "full accountability for past offenses." On his campaign website, he specifically assailed the Bush team for making blanket secrecy arguments in order to muzzle civil liberties lawsuits. As the website put it, "The Bush administration...has invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."

Fast forward to February 2009, when a panel of federal appeals judges conducted a hearing on a lawsuit filed by five victims of Bush's "extraordinary rendition" program. The plaintiffs had been whisked away to foreign locales, where they were allegedly tortured. When this lawsuit first arose during Bush's tenure, the Bush lawyers, citing "state secrets," argued that the case should be summarily thrown out without being heard. Now, in February, the Obama lawyers had their chance to argue differently. They didn't. They invoked the same "state secrets" argument, and tried to get the whole case tossed - thereby prompting the ACLU to complain of Obama, "This is not change, this is more of the same."

Fast forward to April 3, last Friday. There is another lawsuit, brought by a civil-liberties outfit called the Electronic Frontier Foundation. On behalf of the five American plaintiffs swept up in Bush's warrantless phone surveillance dragnet (which, in itself was an apparent violation of federal law), the EFF lawyers are seeking to sue the government. But not only is the Obama team trying to toss this lawsuit without its evidence being heard (claiming in court papers that the case itself "would cause exceptionally grave harm to national security"), it is also making a blanket claim that not even Bush had attempted.

Obama's lawyers are now specifically invoking the Patriot Act (this would be the same Patriot Act that Obama supporters have long assailed as a blank check for government abuse) as part of their argument that the government essentially deserves blanket "sovereign immunity" from any civil liberties lawsuits that allege illegal spying.

The Obama lawyers observed, in their court brief last Friday, that the Patriot Act does contain one teensy loophole: Citizens who are unhappy about their intercepted phone calls and emails do have the right to sue in those instances when the government has already made "willful disclosures" of the intercepted info. But how often would that happen? In other words, the Obama lawyers are invoking the Patriot Act language which essentially tells litigating citizens that if the government simply keeps its intercepted info secret, they have no grounds to sue.

All of which has prompted the EFF to chide Obama by lamenting: "This isn't change we can believe in. This is change for the worse."

None of these moves by Obama should come as a total surprise, however. As a candidate back in 2007, he vowed that he would work in the Senate, via filibuster, to block "any bill that includes retroactive immunity for telecommunications companies" - referring to the firms that helped Bush conduct his secret surveillance program. But when it came time for him to act, in June 2008, he caved. Thanks to the Democratic Congress, the telecommunications companies now have retroactive immunity.

Obama's presidential moves, on "state secrets" and blanket "sovereign immunity," have prompted condemnation from constitutional law experts. On MSNBC last night, law professor Jonathan Turley, who has frequently served as counsel in national security cases, said that Obama's current stance "is the ultimate victory for the Bush officials."
He said that the Patriot Act proviso is "a breathtaking claim...This is like, 'no one can sue the king.'"

Two questions come to mind: Why has there been relatively little public discussion, among most liberals and conservatives, about Obama's Bushlike behavior in these court cases? And why has he taken positions that so blatantly undercut his transparency vows?

On question one, the answer is easy. Liberals have been averse to picking fights with Obama on issues of disagreement, lest they disturb his public popularity and hence imperil the big-ticket items on his domestic agenda. Meanwhile, conservatives aren't inclined to bring up Obama's uber-Bush court stance, lest they be forced to admit that he's not conforming to their soft-on-terrorists caricature.

On question two: The simplest answer is that no president, liberal or otherwise, is inclined to roll back his own powers, or assert less than his predecessor. But it's more complicated than that. Obama's his lawyers are probably reluctant to give up the "state secrets" argument in the surveillance case, lest they damage the argument itself. Moreover, Obama probably has to play politics within his own administration. He can choose to honor all his transparency vows and even go the extra mile - or, as an outsider who is little known to the intelligence community, he can choose to build bridges to the intel people (whom he will need in the years ahead) by demonstrating in court that he'll go the extra mile to shield them. As the saying goes, to govern is to choose.

As evidenced by his court actions, Obama has clearly made his choice. But that choice should prompt more discussion, not end it. As Turley argued last night, Americans should guard against any presidential moves that threaten to "eviscerate privacy" - rather than acquiesce to the appeal of Obama's "cult of personality."