By Kenneth J. Theisen
George W. Bush must be proud of his successor, Barack Obama, for following in his footsteps. In a three day period, Obama’s Department of Justice (DOJ) has twice echoed the legal arguments of the Bush regime in defending the police state created under Bush. In the latest court case, DOJ defended Bush regime wiretapping. While a candidate, Obama condemned the wiretapping program, but now when his administration is in charge of the massive surveillance programs either initiated or expanded under Bush, apparently his views have changed. Surprise! Surprise! Surprise!
DOJ filed a legal brief on February 11th requesting that Chief U.S. District Judge Vaughn Walker in San Francisco suspend action on a lawsuit that challenged the legality of one of Bush’s wiretapping programs. Just like it did in court on Monday in a case suing a private contractor that was heavily involved in the illegal CIA rendition/kidnapping program, DOJ argued that allowing such a suit would jeopardize national security. DOJ also argued that only the executive branch of the government could control access to the classified material in this case. The DOJ challenged the judge and threatened to go to the federal appellate court unless Walker suspended the case no later than three P.M. Friday, February 13, 2009.
The lawsuit was brought by the Al-Haramain Islamic Foundation which alleges that the government tapped the Foundation’s phones. Ironically they knew this because in 2005 the government inadvertently let lawyers for the Foundation see a classified document that proved the phones were tapped. Later the government, through court action, was able to retrieve the classified document and an appellate court ordered that the document itself could not be used to prove the surveillance occurred. This was like putting the genie back into the bottle. Everyone was supposed to pretend no such document ever existed.
But Judge Walker allowed the Foundation to prove the spying with other evidence. The Foundation now says it has enough evidence to prove the government spying and it wants to proceed with the case. This is what DOJ is trying to stop with its national security argument. The government fears the public reaction if the full truth of the surveillance programs becomes public. While pretending the programs are limited to spying only on “terrorists,” the reality is that the federal government is spying on millions of people, their records, their phone calls, and their email, though various spy programs.
On January 5, 2009 Walker issued an order allowing the Foundation to read the classified surveillance document that would confirm their assertion of surveillance and avoid dismissal of their suit. Walker stated that the Foundation had presented enough evidence from public statements to show that it had probably been a target of the surveillance program. Obama’s DOJ is now arguing that the court’s order "presents a clear-cut conflict between the court and the executive branch." Jon Eisenberg, the lawyer for the Foundation, in commenting on the latest DOJ action stated, "They have drawn a line in the sand between the executive and the judiciary, saying, ‘You do not control these documents, we do.’ " It appears that Obama wants to continue the imperial presidency of Bush, which did not allow the other branches of government to challenge the executive branch. If the DOJ position is upheld by the court the lawsuit will have to be dismissed and the truth of the massive spying will remain a “state secret.”
And for those doubters that think this latest legal brief was a low-level decision made by some errant DOJ attorney left over from the Bush regime, Justice Department spokesman Charles Miller confirmed that the DOJ brief represented the views of Attorney General Eric Holder and the Obama administration. This was also true in the DOJ legal arguments presented in the rendition case on Monday where the government claimed state secrets needed to be preserved. Those arguments were also vetted at the highest level.
Walker has angered the government because he stated he would examine the classified document in private and then make it available to Al-Haramain lawyers who have been given security clearances so they would then be able to oppose dismissal. DOJ argues that the document can not be safely disclosed and further that the Foundation can not be allowed to bring a lawsuit until the government first acknowledges that the wiretapping occurred in the first place. In other words it is arguing the government gets to control any lawsuits against it. By refusing to admit any spying the government can deter any lawsuit regardless of reality.
This latest move will disappoint many Obama supporters who thought the new administration would reverse the fascist political trajectory begun by the Bush regime. But it is consistent with a pattern of upholding many of the policies instituted in the so-called “war of terror” by Obama. Not only are the Bush wars to be continued, but so too are the “national security” programs that have resulted in the expansion of the police state under Bush. The supremacy of the executive branch over the other branches of government will be defended by Obama and his cohorts. National security, state secrets, executive privilege, and other “magic words” will be used to hide from the public the real workings of the government. Whatever Obama pretends to be does not obscure what he really is – the Commander-in-Chief of an empire dedicated to its preservation and expansion.