Al-Haramain v. Obama

Fool me once...

While many of the natives are losing their shit about democratically-elected representatives passing a health care bill to cover ~30 million of their uninsured countrymen, calling for impeachment of their democratically-elected President with his tyrannical tax cuts for 95% of working Americans, a plain-as-day illegal abuse of power was called out yesterday.

The National Security Agency broke the law when it wiretapped two American lawyers working for the El-Haramain Charity Foundation, a judge ruled Wednesday. The government has not decided whether to appeal this long-awaited decision, as it touches on subjects ranging from the state secrets privilege to the breadth of President Bush’s “Terrorist Surveillance Program.”

As Greenwald  notes…

That means that all 3 federal judges to consider the question have concluded that Bush’s NSA program violated the criminal law (FISA).  That law provides that anyone who violates it has committed a felony and shall be subject to 5 years in prison and a $10,000 fine for each offense.  The law really does say that.  Just click on that link and you’ll see.  It’s been obvious for more than four years that Bush, Cheney, NSA Director (and former CIA Director) Michael Hayden and many other Bush officials broke the law — committed felonies — in spying on Americans without warrants.  Yet another federal judge has now found their conduct illegal.  If we were a country that actually lived under The Rule of Law, this would be a huge story, one that would produce the same consequences for the lawbreakers as a bank robbery, embezzlement or major drug dealing.  But since we’re not such a country, it isn’t and it doesn’t.

Although news reports are focusing (appropriately) on the fact that Bush’s NSA program was found to be illegal, the bulk of Judge Walker’s opinion was actually a scathing repudiation of the Obama DOJ.  In fact, the opinion spent almost no time addressing the merits of the claim that the NSA program was legal.  That’s because the Obama DOJ — exactly like the Bush DOJ in the case before Judge Taylor — refused to offer legal justifications to the court for this eavesdropping.  Instead, the Obama DOJ took the imperial and hubristic position that the court had no right whatsoever to rule on the legality of the program because (a) plaintiffs could not prove they were subjected to the secret eavesdropping (and thus lacked “standing” to sue) and (b) the NSA program was such a vital “state secret” that courts were barred from adjudicating its legality.

Those were the arguments that Judge Walker scathingly rejected.  All of the court’s condemnations of the DOJ’s pretense to imperial power were directed at the Obama DOJ’s “state secrets” argument (which is exactly the same radical and lawless version, as TPM compellingly documented, used by the Bush DOJ  to such controversy).  From the start, the Obama DOJ has engaged in one extraordinary maneuver after the next to shield this criminal surveillance program from judicial scrutiny.  Indeed, their stonewalling at one point became so extreme that the court actually threatened the Obama DOJ with sanctions.  And what TPM calls the Obama DOJ’s “Bush-mimicking state secrets defense” has been used by them in one case after the next to conceal and shield from judicial review a wide range of Bush crimes — including torture, renditions and surveillance.  As the Electronic Frontiers Foundation put it:  “In Warrantless Wiretapping Case, Obama DOJ’s New Arguments Are Worse Than Bush’s.”

That’s why this decision is such a stinging rebuke to the Obama administration:  because it is their Bush-copying tactics, used repeatedly to cover up government crimes, which the court yesterday so emphatically rejected.  And it’s thus no surprise that media accounts tie the Obama administration to the cover-up of this program at least as much as the Bush administration.  See, for instance:  Charlie Savage and James Risen in The New York Times (“A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal, rejecting the Obama administration’s effort to keep shrouded in secrecy one of the most disputed counterterrorism policies of former President George W. Bush”); Time (“The judge’s opinion is pointed and fiercely critical of the Obama Administration’s Justice Department lawyers” and “The judge claims that the Obama Administration is attempting to place itself above the law“).  The 9th Circuit Court of Appeals also previously condemned the Bush/Obama “state secrets” position as abusive and lawless.

In December, 2005, The New York Times revealed that the Bush administration had been doing for years exactly that which the law unambiguously said was a felony:  eavesdropping on the electronic communications of Americans (telephone calls and emails) without warrants.  We knew then it was a crime.   Three federal judges have now concluded that it was illegal.  And yet not only do we do nothing about it, but we stand by as the Obama administration calls this criminal program a vital “state secret” and desperately tries to protect it and the lawbreakers from being subject to the rule of law.  This decision may make it more difficult for the Obama administration to hide behind sweeping secrecy claims in the future, but it won’t negate the fact that we have decided that our leading political officials are completely free to commit crimes while in power and to do so with total impunity.

Although I’m a most-of-the-time Obama supporter, I’m just as wary about a continued expansion of executive power under his watch.  I vehemently disagree with the defenses put forth, but I understand it was the Obama’s DOJ job to protect government interests (including their predecessors).   

Getting a FISA warrant is so easy (lower threshold than typical criminal case), any need to circumvent the system would seem to be a total red flag. Kudos to Judge Walker.