While most of us don't worry about some government agent throwing a black bag over our heads and dragging us off to a secret prison where we'll be tortured, the thought that the president can, as he pleases, read our (e)mail and record our phone conversations is disturbing.  Will Barack Obama hold onto or even seek to expand some of these hidden powers George Bush carved out for the presidency?

In 2001, the Bush Administration instituted a broad domestic eavesdropping program.  Though a legal process was in place that would have likely allowed the president to implement such a program, he ignored it completely, opting instead to run it secretly.

This is reminiscent of Richard Nixon, whose use of government power to spy on political opponents led to the creation in 1978 of the law that President Bush violated beginning in 2001. The Foreign Intelligence Service Act (FISA) required that all domestic eavesdropping activity be reported to a special court, which would then decide whether the surveillance was warranted.

Bush never notified the court even as his spy agencies installed powerful data collection equipment at massive Internet and mobile phone hubs run by the nation's largest telecom providers.

After the program was revealed in 2005, the flurry of lawsuits that followed were mostly thrown out when the Democratic Congress passed a law that let the phone companies off the hook.

However, one prominent suit remains.  In the case of Al-Haramain vs. Bush, the plaintiff claims that the Bush administration violated the FISA statute when, without the required warrants, it monitored phone conversations between him and his lawyers.  The Bush Department of Justice denied this and sought to have the case dismissed.  But in the discovery phase, the government inadvertently sent to the plaintiff's the full transcripts of the phone conversations they'd denied ever recording.

After reviewing the transcripts, the judge ruled that they were grounds for continuing the case.  The government immediately claimed they were "state secrets" and sought to have the case dismissed.  The judge denied the motion.

When Barack Obama took the presidential wheel from George Bush, many Obama supporters believed he would steer clear of such secrecy.  They hoped he would restrain from using"state secrets" to put the brakes on court cases that could keep the president from off-roading into autocracy.

With this in mind, the judge slowed down the trial to see if the new DOJ would approach the case any differently.  As a candidate, Obama supported keeping the FISA statute and opposed granting immunity to the telecoms.  His stated positions led the judge to reason that change might be on the way.

So what happened?  The Obama DOJ filed an emergency motion with a higher court, citing the "state secrets" privilege and seeking to dismiss the Al-Haramain case.  When the court refused to hear the motion, the Obama DOJ said it will appeal.

In the Al-Haramain case, Obama has taken from Bush the wheel of the presidential truck and continued driving it straight through the "state secret" loophole.  Lofty rhetoric about a new age of accountability and transparency notwithstanding, Obama has acted not only to protect his predecessor, but to retain some of the kingly powers Bush scratched out for future presidents.