Obama DOJ invents radical authoritarian theory to defend Bush administration's warrantless wiretapping

The Obama administration has filed a brief in EFF's lawsuit against the government for its program of illegal, mass wiretapping of Americans, defending the practice, arguing that the lawsuit should be dismissed, endorsing the Bush administration's invented "State Secret" theory, and augmenting it with a new theory, that "the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications." This brief was not written by Bush cronies left behind by the outgoing administration: this is an invention of the Obama administration.

I don't expect the guy to walk on water, but I'd sure like it if he'd stop wallowing in the mud.

Every defining attribute of Bush's radical secrecy powers -- every one -- is found here, and in exactly the same tone and with the exact same mindset. Thus: how the U.S. government eavesdrops on its citizens is too secret to allow a court to determine its legality. We must just blindly accept the claims from the President's DNI that we will all be endangered if we allow courts to determine the legality of the President's actions. Even confirming or denying already publicly known facts -- such as the involvement of the telecoms and the massive data-mining programs -- would be too damaging to national security. Why? Because the DNI says so. It is not merely specific documents, but entire lawsuits, that must be dismissed in advance as soon as the privilege is asserted because "its very subject matter would inherently risk or require the disclosure of state secrets."
What's being asserted here by the Obama DOJ is the virtually absolute power of presidential secrecy, the right to break the law with no consequences, and immunity from surveillance lawsuits so sweeping that one can hardly believe that it's being claimed with a straight face. It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior. As EFF's Bankston put it: "President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties. 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."

New and worse secrecy and immunity claims from the Obama DOJ (via /.)

I write books. My latest is a YA science fiction novel called Homeland (it's the sequel to Little Brother). More books: Rapture of the Nerds (a novel, with Charlie Stross); With a Little Help (short stories); and The Great Big Beautiful Tomorrow (novella and nonfic). I speak all over the place and I tweet and tumble, too.

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Phikus

We certainly would be no better under McCain / Palin *shudders*, but it does seem like the new puppet is still in many ways on a hand of the same old marionette in this Punch and Judy show. *dusts off tinfoil hat*
Phikus

Synchronicitously once again, my itunes decided to play Frank Zappa’s “It Can’t Happen Here” while I commented.
Takuan

considering they routinely murder each other at this level of politics, I’m not surprised things take more time than they should. Everyone has to make sure their personal ass is covered as well as their team, their department, their boss, their party.

I’ve been thinking about the death of Bush Gang IT man, Mike Connell, in a plane crash just before he was to testify against Rove. More and more I think it was just a matter of someone he had never seen before walking up to him and showing him a picture of his family – and silently walking away. Imagine living and working full time in the snake pit that is power at the top. It’s a wonder anything gets done.
Tones

@Samsam

True, none of us have evidence about whether Obama personally signed off on this. Are you saying it’s inappropriate to hold him and his administration accountable for the actions of his own Department Of Justice?

Michael F Hertz is not an evil Bush-administration sleeper-agent. Presumably he noticed that he has a new boss.
Diggidy

SamSam, #15, et al–Thanks for backing me up with a few facts. I didn’t want to (completely) apologize for what the lawyer(s) did here, but I did want to bring a little reality to the discussion.

This is just a legal argument and NOT a policy.

As SamSam points out, there is no way the administration can oversee every legal argument the DOJ lawyers file.

Besides, this case is still in it’s (very) preliminary stages–policy change is in no way precluded from changing how the DOJ would handle it, (and might even be premature.)

The legal argument is simply that CONGRESS has not authorized this kind of lawsuit, (which is a requirement when suing the federal government or one of it’s agencies–Congress must “waive” their sovereign immunity in order to be sued.) This argument basically states that the EFF has not found this waiver, and thus has no grounds to sue, as the court doesn’t have jurisdiction over the claim. The judge will now read both briefs and decide if the EFF suit can still go forward.

This is all before the merits of the case have even been weighed by the judge. In other words, this suit hasn’t really started yet, and a policy shift could easily be construed as premature.

I agree that the wiretapping should be illegal and is morally deplorable to the government we should have, and the government Obama promised. However, this is an obvious legal argument, and must be made. Until Congress and/or the President change the laws the Judge must hold up, (and the DOJ must in this case defend, this should not be seen as a surprising argument.

Please, PLEASE don’t extract a major policy decision from a single legal argument from a few DOJ lawyers based on the laws as they are currently written. As a law student, I am worried that being a zealous advocate for my client will sometimes make me look like a bad guy to third parties when I’m just doing my job. Even the guilty get their day in court. Lawmakers and lawyers are not the same thing.

We should all still hope that the policy change comes, and soon. But it’s not here yet. Maybe he is a Bush crony, and maybe not–but MICHAEL F. HERTZ is doing his job. I disagree with the policy underlying the argument, but the argument must be made. Just my two cents.
Anonymous

As usual, Glenn Greenwald has been following this carefully.

-Sean
Richard Steven Hack

One word: suckers.

Told you not to believe the hype about Obama.

A politician is a politician. End of story.
ia_

I don’t know if this is the case or not, but perhaps the Bush-era argument is being advanced for the purpose of having it defeated, thus explicitly setting a legal precedent against it?

Perhaps wishful thinking, hopefully not. Maybe someone dropped the ball?
ia_

Also, just because the program is illegal does not necessarily mean it can be made open, as certain aspects (names, locations, technologies, etc) may still post a security risk.
Phikus

RSH@43: Oh, we should have believed the hype from McCain / Palin instead? Or just not showed up to the polls at all? Please suggest something constructive instead of taking potshots from the sidelines with so many “I toldja so’s!” Thanks.
Matt Katz

The nice thing is that it doesn’t matter that Obama did or didn’t see the wording of this legal brief.

Once you are the president, the buck stops with you. You get glory and shame for picking people who picked people who did things. That’s how it goes.

So boo hiss for this.
Rick

There’s a larger issue here. Who is Barack Obama? I’ve said it before and I’ll say it again:

He voted for it because he supports it.

Barack Obama is and always has been a pro-establishment politician. He does not conceal it, nor did he ever pretend to be a “liberal.” This is what our government is like. Nothing new here.
Timothy Hutton

STEPHEN said:

The President CANNOT fire anyone he wants in the Justice Department, as Bush found out when he fire all the Democrats and moderates. It’s illegal.

That’s not true – political appointees are just that, and these positions are political appointees.

How many prosecutors has Obama kept from the previous administration?

Ronald Regan fired all the prosecutors upon taking office. George H. W. Bush did as well. And Bill Clinton fired all but one (Michael Chertoff). George W. Bush likely fired all sitting prosecutors when he took office, and then he fired 8 into his second term.

Media Matters has a fairly good recount of the press accounts of Bush & Clinton prosecutor firings here.
MossWatson

I think that the “Obama didn’t have a say on this” crowd is probably somewhat right, but the “relax, give him a break” crowd is totally wrong. If (if, if, if) Obama has any interest in changing these sorts of policies, he will do it only if and when people make a big fuss over it, and call him out on it. No relaxing, no giving of breaks. This is bullshit, and We need to make it known.
GregLondon

gaddamnit.
Stephen

“United States Code, Title 28 Â§ 546. Vacancies
(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.
(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.
(c) A person appointed as United States attorney under this section may serve until the qualification of a United States Attorney for such district appointed by the President under section 541 of this title.”

This is about US Attorney’s, a position below the one we’re discussing. At the very least, it strongly implies that Obama can’t replace Hertz until his replacement has been approved by the Senate. Since Hertz’s current title includes the word “Acting” I believe that the Senate process has not happened. We know Senate Approval is required for his superiors and this section of US Code says it is for his subordinates, so I presume it is for him also. What ever your position on the hotly debated issue of Bushes US Attorney firings, this explains why there are still Bush people in the Obama administration while the Senate works its way down through the ranks of all positions requiring approval.
SpittleBug

If people are angry, they should organize. Or sit on a blog bitching at each other about who’s more right. Whatever gets the job done.

There are people who voted for Ron Paul, Obama, Kucinich, etc., who can find common ground on the issue of civil liberties and government intrusion into our lives. But you can’t put them in a room together without everyone pointing fingers.

Blech.
Xanthippas

The more things change, the more they stay the same. I guess I shouldn’t be surprised that a President doesn’t want to hand over the power to spy on Americans without any judicial review whatsoever.

And it doesn’t matter if it’s Obama, Bush, Undead Nixon, whatever. It’s wrong.
Ceronomus

Very disappointing.
Santa’s Knee

Once we went black, we weren’t supposed to go back!

Don’t be a recidivist, Big O!
rtopia

“Please suggest something constructive instead of taking potshots from the sidelines with so many “I toldja so’s!”

ok…

stop voting for republicans, democrats and/or incumbents and encourage “swing voters” to do the same
lava

is this the part about power corrupting?
FoetusNail

ODIN861:

even going so far as NOT allowing smaller banks to repay TARP money so the Gov. can still control them.

I would appreciate seeing a link to any mainstream source of this statement. Thanks
aldasin

I voted for Obama, and for that reason I’ll give him the benefit of the doubt for about 24 more hours. That should be time to react to a rogue Bush holdout, if that’s the case, and at the very least put out a press release stating the current administration’s intention to pursue a different course in this matter.
Beyond that, there are no excuses or explanations that cover Obama’s ass.
Brainspore

@ Rtopia #48:

Boycotting the major parties doesn’t solve a damn thing unless it results in someone better getting elected. It’s just a convenient way of blaming everything that’s wrong with the country on somebody else without having to do anything.

Show me a non-voter and I’ll show you someone that politicians don’t give a shit about.
Diggidy

This is a little unfair.

The news constantly refers to it as the “Obama DOJ”, which it only sort-of is. (One of) the DOJ’s jobs is to defend the government in any legal action taken against it. They are required as legal professionals to take any actions they legally can, and advance all applicable arguments in this pursuit.

Obama has no control over which specific legal theories “his” lawyers decide to advance. So, although I agree these arguments are BS, I have to recognize that they are just doing their job.

Policy decisions and post-facto defenses are two different things. Chill out everyone–Obama didn’t do anything wrong here.
Anonymous

you know what’s even worse?

–

The Cybersecurity Act of 2009. This bill was proposed by 2 Democratsâ€“Jay Rockefeller and Bill Nelsonâ€“and 1 Republicanâ€“Olympia Snowe and grants the administration sweeping powers over the internet. It establishes the Office of the National Cybersecurity Advisor and grants that office, the President, and the Commerce Secretary unprecedented powers.

Under this bill, the President will be allowed to declare a cybersecurity emergency and shut down or limit traffic in in any â€œcritical information networkâ€ when the President declares it to be in the â€œinterest of national security.â€ Of course, the bill defines neither a critical information network nor a cybersecurity emergency and leaves this power up to the President.

However, to me, the scary part is found in the new powers of the Commerce Secretary: the Secretary will be given â€œaccess to all relevant data concerning networks without regard to any provision of law, regulation, rule, or policy restricting such access.â€

Ummmmâ€¦ what? Thats a scary sentence. I think the worst part isâ€¦ wellâ€¦ the whole thing is just awful. Go ahead… google it.
chris7crows

I remember when the Democratic leadership resurrected the dead telecom immunity bill during the primaries and I pointed out that there was no way they would do that without Obama’s approval. Many people told me that I just didn’t understand, this was all part of Obama’s master plan, he was _really_ going to prosecute the telecoms once he got into office!

Then after saying he’d vote against any bill containing telecom immunity, Obama voted for it. Again, many people said that I just didn’t grasp the big game here, that Obama was a master strategist who was just setting up the telecom companies for a fall after he was elected.

(Ignoring, of course, that the telecom companies threw a lavish party at the Democratic convention for all the delegates who had helped grant them immunity.)

And now this…look, I voted for Obama with open eyes — given our choices, he was really the only viable option — but the idea that he’s going to roll back all the Bush-era infringements on civil liberties is simply naive. Between the intelligence establishment push-backs, well-funded lobbying by self-interested corporations, and the potential embarrassment to his Democratic colleagues who originally went along with the plans, it’s highly unlikely we’re going to see substantial change from this administration.

Next up, I’m fully prepared for Obama to approve a renewal of the Patriot Act when it comes up.
zyodei

@ Phikus 44: When presented with a false choice, of course they are both rotten.

I’ve said it before, and I’ve said it again: Out of the 15 or so candidates for president, only Ron Paul and Dennis Kucinich represented any chance of real “change.” Ron Paul spent his whole life fighting against the empire, the military wars, the war on drugs, and the surveillance state..and spent the whole period 2000-2008 fighting the Republicans and the Bush presidency more fervently than any but a handful of Democrats. I wish more Liberal democrats would have pushed for him in the primaries, for being far and away a better opponent than any of the other Republicans and speaking truth on a lot of forbidden areas.

I myself disagreed with Kucinich on many issues…but I would have proudly voted for him overy any of the other candidates other than Paul. I would have slit my wrists before voting for either McCain or Obama.

Obama’s actions in government NEVER matched his rhetoric. He and McCain are inherently similar – phony “mavericks” who have spent their political lives working for the establishment. If you voted for him because he was better than McCain, fine. If you voted thinking he represented “change”, you were misguided by a silver tongue. His political history simply does not support the “change” rhetoric.

Because Obama has simply continued the Bush “bailout” plan, which is the greatest theft in human history, and will probably eclipse everything else he might do in how it affects the average American’s life, I think it is appropriate to refer to the current era as the “Bush/Obama era.” I suppose you have to give him credit for replacing oil/military industrial complex influence with wall street influence. I guess.

I personally think that Obama has the potential to be worse than Bush in how he affects the everyday American’s life, how his actions affect our prosperity and liberty. Particularly because he has the public support that will enable him to push through all sorts of crummy legislation, much as Bush did in 2001. I know that sounds like a drastic statement, but it’s true. Maybe I’m being pessimistic.
odin861

Why is this surprising? Obama is clearly ALL about Power and control. He wants to run GM and the banks, even going so far as NOT allowing smaller banks to repay TARP money so the Gov. can still control them. Why wouldn’t he also want to control us? Big Government and Big Brother. I think this is worse and I am shocked to even hear myself think that! Can I have a do over on my vote please?!
Ugly Canuck

Remember, to place things into context:

http://cryptome.info/protest-cops/protest-cops.htm
Anonymous

You realize the State Secrets doctrine dates back to 1953 — when W was a mere 7 years old. Cite: http://supreme.justia.com/us/345/1/case.html

Please do not cheapen legitimate disagreement with Bush’s policies with absurd or factually untrue rhetoric (e.g. Bush Derangement Syndrom).
Takuan

OK now, consider this: “Please don’t throw me in
that briar patch!”

If you are in a position of inferior power (apparently), how do you prevail? If he is indeed being effectively blackmailed (either by circumstances of real politik or his own past deeds) woul dhe in the end not get out from under compulsion by having the matter become force majeure?
Jonathan

The motion lists seven attorneys from various federal agencies as its authors. Though Hertz is indeed first in line, I think we can do better than characterizing this as having been written “under the authority” of a “left over Bush crony”.

Though the “Bush leftover” argument hasn’t yet sunk completely, its buoyancy is limited.

Because of the hand he was dealt, Obama deserves latitude on a lot of issues, but, IMO, this isn’t one of them. Hope is part fear, and the greatest thing that Obama can do for us is to teach us that we are each responsible for our own political savvy.
bardfinn

Obama could have handed down memos stating “Don’t claim state secrecy until it’s been substantiated by my office” in the same way he handed down “don’t claim executive privilege until it’s been handed down by my office”. He likely didn’t (Not that we’d ever find out in our lifetimes, barring a substantial whistleblowing) and likely can’t, as a matter of scale.

The DOJ is an executive branch department, yet they have powers and responsibilities delegated to them.

There’s another dimension to consider here: We are talking about things that are considered sensitive state secrets. Obama may reasonably believe that the legal theory behind the DOJ’s case ultimately won’t survive an encounter with the judicial system, and therefore stepping in to order the DOJ to alter their defense would only tip the State’s hand and dirty his own hands, thereby creating a procedural problem that could potentially start the Judicial process allllll overrrrr againnnnnn.

Obama gets lambasted for not stepping in here, but I think a far better comparison would be this one.
bardfinn

Bah. That should be lambasted.
Anonymous

Diggidy is right, to a point.

But Obama and the AG have power over the kinds of arguments they will allow, as a policy decision. Past administrations have chosen to drop or settle cases or to disallow certain legal arguments.

Left alone, the lawyers certainly should make whatever arguments they need to make to win the case. But the administration is failing in its oversight.
urshrew

NO government that gets extraordinary powers simply gives them back. Our congress sold the tatters of the Constitution off to the executive branch in 2001. We’re not getting those last remnants back just by voting in the presidential candidate of the very same party which fell over itself to be on the bandwagon to give the executive branch unlimited power, forever, in the first place.
Stephen

Can someone please point to the evidence that this is not being perpetrated by a left over Bush crony? Obama is not allowed to fire all Republican DOJ prosecutors. Did Eric Holder or another Obama appointee have something to do with this in a way that is on record?
donniebnyc

This is not the change I voted for.
Anonymous

The U.S. government has been listening in on private communications since the Second War of Independence when both the Union and the Confederacy tapped the opposition’s telegraph lines.

“Aunt Maude arrives Saturday” could have different meanings depending on whether it was sent by Uncle Frank or General Sherman.

There would have been no need for breaking the Japanese “Purple” code or the efforts at Bletchly Park if there were no intercepted communications.

While it’s doubtful Islamic terrorists have an “Aunt Maude,” one can’t be too careful.
Anonymous

As a formal paralegal, I can say pretty confidently that this is standard legal action on the part of a defending lawyer. You always demand the suit be thrown out on various grounds, you always state the legality of the accused action, etc., etc. And no, Obama would not have had anything to do with how this brief was written.

Now, what can happen from this point is that the public makes a stink about this defense until Obama steps forward and decides to make it his business. To this point he may have been briefed on it, but he probably hasn’t had any direct hand in it. If we get enough of an outcry going, then he would be encouraged to step forward and take a hand in it. He’s done an impressive job so far of undoing some of the Bush administration’s worst offenses (still waiting for the Military Commissions Act to be rescinded, however).

Let’s give the guy a bit of a break. He’s been in office less than 3 months, he’s come in after just about the worst, most abusive administration in our history, and he’s been plunked down into the worst economic crisis anyone alive has faced. No rational person can expect him to be on top of every little thing every minute of the day. And in response to ODIN861, good grief, NO ONE runs for president unless they want power. That’s just how the game works. To hold that against someone is astoundingly naive. What we can hope for is someone who wants the power but who also wants to do the decent thing for most of us. It’s going to take a lot more than this answering brief to make me give up on the man.
Mosh

Kevitivity how is this making anti-Bush protesters look silly? They were protesting what they felt was immoral in every sense of the word and the fact that Obama is doing it now too doesn’t make their initial opinions invalid.

Think before you speak in the internets.
Takuan

watch this space:
http://data.gov/
Stephen

I just read the government filing. It is written under the authority of MICHAEL F. HERTZ who holds the same position under Obama that he did under Bush, but on a temporary basis until his replacement is approved. This IS the action of a left over Bush crony.
Takuan

who knows Kev? Perhaps one day you will have the cell inbetween Cheney’s and Bushes.
Timothy Hutton

STEPHAN – The president can fire anyone that works at the pleasure of the President, including federal prosecutors… Normally, all political appointees hand in letters of resignation, and the new administration can either accept or decline them.

Obama has held office for almost three months, he truely “owns” this DOJ (as noted in the original article)…

Whee! Change we can believe in! Yes we can!

Yea, right!
Cory Doctorow

@15: It’s standard for attorneys to invent radical theories giving the president near-total authority?

Which other times did this “standard” thing happen?
theMage

Obama has voted for more government control his entire (albeit short) political career. Also, now he is getting the same security briefings that Bush was getting, thus now has access to “the big picture”.

Why is this a surprise to anyone?
John H.

Very disappointing? No. EXTREMELY disappointing? Yes. It’s just indefensible.

A good test in the coming weeks will be which people call Obama out on this, and which roll over and accept it.
Takuan

@15:
“What we can hope for is someone who wants the power but who also wants to do the decent thing for most of us.” That is unreasonable: to keep it within the bounds of real human nature; “What we can hope for is someone who wants the power and takes less pleasure in doing pointless evil for its own sake then the last guy.”
SamSam

Posted by Cory:

This brief was not written by Bush cronies left behind by the outgoing administration: this is an invention of the Obama administration.

Rebutted by Stephen:

I just read the government filing. It is written under the authority of MICHAEL F. HERTZ who holds the same position under Obama that he did under Bush, but on a temporary basis until his replacement is approved. This IS the action of a left over Bush crony.

Thanks Stephen!

It’s always nice to have the actual facts. Facts are nice. I like them. They make posts better.
bardfinn

“Obama has no control over which specific legal theories “his” lawyers decide to advance.”

Riiiiighghghhhhttt…
matt joyce

The man voted for FISA before winning the democratic nomination. It’s not like this was unexpected. Anyone who didn’t see this coming, in fact, may want to refrain from voting since they obviously believed the hype over reality.
Anonymous

You know, It’s a bit early to be writing Obama off. Now granted, I wanted to see Bruce Schneier as head of DHS, so I am definitely a starry eyed optimist, but even so.

He’s been in office since January 21 – less than three months, and he’s already been faced with the economic crisis, the budget mess, several battles with congress, and a major foreign policy trip… and the whole washington crowd is so corrupt that he’s having trouble filling key posts with what are, honestly, not very stringent ethical standards at all.

The guy has a lot on his plate. I don’t like it, it bothers the hell out of me, but I can certainly buy the argument that a lawsuit that will be wending its way through the courts for years under the best of circumstances might not be right there at the top of his list of things to deal with… especially when the court has already shown a penchant for striking down such arguments in a far more durable manner than a presidential policy change could.

I could be wrong, but in the absence of disappearing americans, soldiers in the street, or other new and obviously evil policies, I think I’ll give him the benefit of the doubt for at least a few more months before I start comparing him to Dubya or Cheney.
imipak

Still, looking on the bright side, at least the conservative yammerers will shut up now and back the new regime. Not even the loopiest of loopers could claim this is evidence for the sekrit Obama plan to institute a sharia-law based socialist people’s republic in league with the UN black helicopters. After all, it’s their idea, not his.

Yeah, I’m clutching at straws.
Tones

Diggity, Samsam et al: So you’re saying that we ought to blame the Obama Administration’s bad decisions on George W Bush? Who’s got Bush Derangement Syndrome now?

The “leftover lawyers” take their orders from the White House. The lawyers are now Obama’s. No legal theory gets advanced by them without approval from the top.

This isn’t some technical error you can chalk up to unthinking beurocrats. This is a radical unprecedented assertion of government immunity. That sort of thing doens’t happen by accident.

Even if it did, is it better to think that Obama just forgot to notice this was happening and accidentally left his lawyers on autopilot?
SamSam

@bardfinn: I must say, I’m having difficulty with that comparison. Is Obama Tom Bombadil? A enigma? A nature spirit? Tolkien himself?
Stephen

The President CANNOT fire anyone he wants in the Justice Department, as Bush found out when he fire all the Democrats and moderates. It’s illegal.

In the case of Hertz, they don’t have a replacement for him yet.

One useful aspect of knowing that this was authorized by someone not appointed by Obama is that it increases the probable value of bringing this issue to the attention of the AG and the Whitehouse. It is quite possible that if this reaches Holders desk, he’ll tell Hertz to drop that argument.
Anonymous

It’s nice to see people cling to the idea that neither Obama or his AG, Holder, could possibly exert the slightest bit of control over actions taken by the DoJ. It would almost seem to make that whole electing a President thing sort of pointless. Way to work hard to make excuses for what is just another example of Obama’s unfortunate choices lately when it comes to law and rights (see also anything having to do with actually investigating U.S. torture).
Patrick Dodds

“President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties.”
ZaNu Labour promised the same thing some years ago in the UK. Ha ha. Ha ha ha ha.
Sigh.
MichaelC

It’s nice to see people cling to the idea that neither Obama or his AG, Holder, could possibly exert the slightest bit of control over actions taken by the DoJ. It would almost seem to make that whole electing a President thing sort of pointless. Way to work hard to make excuses for what is just another example of Obama’s unfortunate choices lately when it comes to law and rights (see also anything having to do with actually investigating U.S. torture).
Ugly Canuck

In order to maintain its liberties, a free people must completely and utterly hedge in the powers granted to their rulers, in advance: or the ruler will use “residual”, “executive” powers, unwritten powers, pulled out of his ass, to eg surveille the entire internet.
Powers, which will inevitably used to gain the advantage over HIS opponents, domestic or foreign.
The USA has in fact always hedged in its rulers thus: it is the very hallmark, the very brand, of their Constitutional Order.
It has also been long practice that the branches of the US Government jostle & shove each other back & forth, to determine any contentious aspect of policy. This brief is disguised as if it were just another example of this jostling: but it is not.
Although absolute power in an elective depot need not be fatal to the people’s liberties, provided the election recurs often enough – IMO every six months or so – this experiment is fraught with peril for the liberties of the Citizenry.
Just granting a theory of ANY “penumbral” powers existing in the Office of the President, that is, powers not explicitly granted by the Constitution, or derived by NECESSARY implication from those EXPLICIT grants, is enough to tip the balance to despotism: for all future questions will then also be resolved by a further grants of power.
The case in point: monitoring secretly ALL communications of its citizens….in the internet age! What’s this? Unwritten powers, springing into existence due to “circumstance”, not after a amendment to the Constitution?
Go back to Nazi Germany/Stalinist Russia!
SamSam

@ Tones:

The “leftover lawyers” take their orders from the White House. The lawyers are now Obama’s. No legal theory gets advanced by them without approval from the top.

Like #15 and #5 above, I disagree with you. You think Obama is sitting in Iraq right now, making decisions about lawsuits from the EFF? Do you think Emanual is?

Do you know how many law suits there are against the US Government at any time? Hundreds, not even counting the huge sets like the 400,000 claims currently filed against the government from Katrina. Heck, even AIG is suing the government over the bonuses right now.

The DOJ runs itself for the most part. If the core Obama administration had to sign off on every decision, they’d get even less done than they are getting done now. That’s the way it’s supposed to work. It’s not a question of “accidentally leaving lawyers on autopilot”

Do you have any evidence that someone “at the top” signed off on this?
HeruRaHa

Thanks to Stephen for doing some actual research, that’s always a breath of fresh air…

Let’s not forget there’s still a lot of people at high levels in the government who are sympathetic to the Bush-Cheney Authoritarian Fear-State, and they still serve their original master….

http://www.minnpost.com/ericblackblog/2009/04/01/7800/seymour_hersh_cheney_left_allies_behind_in_national_security_posts_and_may_still_influence_events
Anonymous

GOTCHA!
April Fools, everyone!
Nothing to be concerned about!

Ahhh. For a moment there, I was REALLY worried.
Takuan

http://www.counterpunch.org/floyd04102009.html
HeruRaHa

Let’s not confuse recognizing the glacial pace of policy changes with excusing this… I’m so goddamn tired of this “obamabot zombie koolaid drinker blind to the truth” bullshit… it’s particularly funny to watch the people who supported Bush doing this kind of thing for 8 years now suddenly jumping on Obama for its continuance 75 days in… yes, it’s a despicable thing, but no, recognizing that Obama and Holder have very little influence over one document related to one lawsuit isn’t making excuses or apologies, it’s being realistic…

This kind of thing will change, but only because of public pressure… good on BB for keeping us updated, and people will you please contact your representatives once in awhile!!!
Antinous / Moderator

Kevitivity,

Please do your homework and learn the difference between rendition and extraordinary rendition. If you keep muddying terminology like that, people might think that you’re more interested in polemic than facts.