FlashBack 2009 - Obama 'Admin' Embraces Bush Position on Warrant less Wiretapping and Secrecy
FlashBack 2009 - Obama 'Admin' Embraces Bush Position on Warrant less Wiretapping and Secrecy. (EEF).
San Francisco - The Obama administration formally adopted the Bush administration's position that the courts cannot judge the legality of the National Security Agency's (NSA's) warrantless wiretapping program, filing a motion to dismiss Jewel v. NSA late Friday.
In Jewel v. NSA, the Electronic Frontier Foundation (EFF) is challenging the agency's dragnet surveillance of millions of ordinary Americans. The Obama Justice Department claims in its motion that litigation over the wiretapping program would require the government to disclose privileged "state secrets." These are essentially the same arguments made by the Bush administration three years ago in Hepting v. AT&T, EFF's lawsuit against one of the telecom giants complicit in the NSA spying.
"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," said EFF Senior Staff Attorney Kevin Bankston. "But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."
For the full motion to dismiss: http://www.eff.org/files/filenode/jewel/jewelmtdobama.pdf.
CHARLIESAVAGE: So, in this book, I have two chapters about surveillance. And one of them is only about what happened under Obama, both before and after Ed Snowden. And the other one tries to take everything that we now know, because of the Snowden leaks and then the government’s declassifications as a result of the Snowden leaks, of how surveillance developed from the '70s up until 2009, and put it together into a coherent story, because there's like this whole secret history of how technology and spying powers changed that we didn’t know. Now it’s knowable.
But I open that historical chapter with a briefing that Obama received on February 4, I think it was, 2009—right at that moment where I was thinking there was nothing left for me to do, but was also starting to realize, "Wait, what about these things they say they’re going to keep?" But we didn’t know about this at the time. So Obama comes into the Situation Room to receive a briefing on all these surveillance programs and, you know, the program that’s keeping records of all Americans’ domestic phone calls and emails, that we don’t know about until after the Snowden leaks. But he finds out about it at this briefing. And the sort of permanent security state—the FBI and the NSA and the CIA and the intelligence community—want to tell the new president, "Here’s what you’ve inherited."
And they brief him on all this stuff, and they also explain how George W. Bush had sort of put it in unilaterally, by fiat—"I’m the commander-in-chief. The law doesn’t matter. We’re going to do this"—after 9/11. But also, over time, it had become—it had been secretly put on a stronger legal basis. The intelligence court had begun issuing orders for it. They come up with this PATRIOT Act theory about why maybe it was authorized, counterintuitively, by statute. And so, their argument was: It’s OK now, because the legal basis for it is OK. And over and over, we see the pattern in the Obama administration of "What was the problem with Bush? Is it the problem that these programs are inherently bad, or is the problem that Bush was putting them in place in a way that violated statutes?"
And the very lawyerly minded Obama administration—Obama himself being a lawyer, a lot of the policymakers around him being lawyers—were overwhelmingly focused on the problem with Bush, if there was one, being a legal problem. And so, Obama says, "Well, I’m comfortable"—when he learns about these programs—"I’m comfortable with what you’re telling me, but I want my lawyers—Eric Holder, Greg Craig—to take a look. And are they satisfied?" And they were satisfied.