More thoughts on DOJ v. Jewel
Despite
Obama's campaign promises of renewed transparency and accountability in the
executive, his Department of Justice's motion did not withdraw the "state
secrets" defense promulgated by the Bush administration. In fact, it reiterated
and then expanded the argument, citing
"sovereign immunity" and claiming that the PATRIOT Act bars any lawsuits of any kind against government wiretapping programs unless the government
"willfully discloses" the intercepted material.
To be sure, a public promise by the Obama administration declaring never to leak recordings of one's phone sex to CNN Headline News is somewhat comforting. But it is a cold comfort, barren of credibility, credulity, and meaningfulness.
The
inauguration this January past was a legitimate cause célèbre. We have reason to be proud of our new leader, who,
by all accounts and appearances, is a thoughtful, intelligent, and diplomatic
gentleman. Americans, especially Americans who voted for him, may be inclined
to trust and support Obama, as he seems the consummate professional, especially
when compared to his predecessor.
But
the man matters not. The problems with warrantless wiretapping are not
personal, they are structural. Were Christ Himself to descend from the Heavens,
with manna in one hand and a wiretap in the other, a prudent public would still
recoil.
Wiretaps
are indispensable tools in this electronic age. A total ban would deafen our
defenses when we need to listen the most closely. Moreover, it is important
that the executive branch be given great latitude to act in the nation's
defense. Agility is a necessary condition for prevention, especially when the
enemy is so fleet of foot.
But
none of these general principles can be extended to justify these exceptional
claims. The structural separation between the branches was codified in the
Constitution for a reason. The FISA Court--a body of magistrates with security
clearances charged with approving warrants for wiretaps--is hardly an unfair
standard of review to require. Of the nearly 20,000 requests made since 1978,
only five were rejected for insufficient cause. Is it too much to require that
the government seek the easy approval of this profligate Court before invading
the privacy of millions of innocent Americans?
Some
proponents of warrantless wiretapping--perhaps including some newly converted Obama supporters--argue that
there is nothing wrong with these wiretaps as long as you have "nothing to
hide", and that if you do, you don't deserve the protections of privacy anyway.
But this excuse misses the point. The problem with warrantless wiretaps is not whether or not one has something to hide. The problem is that one branch of the government can do something that cannot be checked by any coequal branch, eliminating the carefully constructed Constitutional provisions of our Founders. The problem is that state surveillance has deleterious effects your liberty even if you have nothing to hide. If a police officer stood ceaselessly at your side while you were on your phone with your grandmother, your behavior would doubtlessly change, even if you were talking about nothing but knitting.
As the privacy theorists Daniel Solove and James Rachels (among others) have written, privacy protects the intimacy required to live life as we want to live it. Wiretapping wrecks not only this, but also the structure of oversight that both limits government power and (perhaps more importantly) the empowering autonomy that comes from being able to control who hears what you say.
Liberty and privacy are both sides of the same coin. Both are implicated here. Bush hacked away at them with an axe. We all thought Obama was going to come in and fix it, but instead he took one look and, in his perfectly practical way, decided a chainsaw would be more effective instead.
The
damage done by warrantless wiretaps is the same no matter who is listening.
President Obama won his support partly on the promise of a new era of
responsible governance. He would do well to reconsider this motion if he wishes
to keep it.
(per DAILY KOS) a lawyers perspective of facts regarding DOJ actions cited for this case:
'Asserting a defense in a lawsuit does not in any way equate official government policy. Trust me on this one. I’ve had to assert defenses to lawsuits early on in the stages of litigation, as is the case in the FISA lawsuit. And it does NOT mean in any way that it is some sort of policy declaration. It is doing what is necessary to defend my client from the relief sought by the Plaintiff. Plain and simple. And that is especially true at the Motion to Dismiss stage. Indeed, these issues are going to be litigated not only at the trial stage, but at the appellate stage. And believe me, DOJ is going to continue argue immunities, because that’s their job. Not only in this lawsuit but in all future lawsuits. It is their job not to create policy, but to defend their client. They are not simply going to roll over and say, “OK, you win, we’ll pay you a truckload of money.” Not going to happen. And certainly not going to happen at this early stage of the game.
Now, it has been suggested that someone the new assertion of sovereign immunity made via the Patriot Act, FISA, etc. is breathtaking and such, but I just don’t see it the way others do. I look at it from the perspective of the government lawyer, and if there is another argument to be advanced to defend my client on immunity grounds, even if that argument hasn’t been advanced before, I’m going to use it. And I’m reasonably certain that is what the DOJ attorneys are doing…their job to defend their client. It has also been suggested that Congress, in passing the telecom immunity in the FISA revision claimed “Well, you can always sue the individual government actors,” and that somehow, this Motion goes against the grain of that claim. This Motion doesn’t change that one iota. Again, this is a Motion filed on behalf of the United States of America and related government Defendants, in their official capacity. If a Plaintiff finds that Wendy Wiretapper, working for NSA, violated a Plaintiff’s civil rights, that lawsuit can still continue, but still be subject to personal immunities for official acts.
I am still wary of where this is going. Clearly, I’d like some more policy assurances from the Obama administration with respect to the wiretapping issue, and changes in the law.
But you can’t blame the lawyers for defending their client. And you can’t translate what they are doing to defend their client as a policy decision. At least not yet.
UPDATE: Some people have stated that “why doesn’t DOJ simply settle the case” or something to that effect. Just wanted to point out that this is the BEGINNING of the lawsuit, not the END. In fact, should DOJ’s Motion get denied, we have no idea where this lawsuit goes. There may be more incentive to settle at that point. Fact is, we just don’t know at this point. But I would NOT expect them merely to settle the case just off the bat. That is rarely, rarely done.'
April 8, 2009 4:48 PM | Reply | Permalink
I find this very troubling, coming from an administration that is suppose to champion the rule of law. Obama and Holder seem to really want to do the right thing, as long as it doesn't involve prosecuting wrong-doers on the right and ruffling political feathers!
April 8, 2009 4:48 PM | Reply | Permalink
Aunt Sam -
As a student of law, I realize that an assertion in a motion does not necessarily equate official government policy. But why even make the argument at all? Obama said loudly, publicly, and clearly on the campaign trail that warrantless wiretapping was wrong.
In this case, he could have required that his lawyers make their arguments in accordance with the Constitution and not simply reiterate and expand the Bush era drivel. They still would have been defending the client, but it would have been a difference of legitimacy and degree. It's like the defense attorney of an accused rapist going after the evidence or process of the prosecutor vs. him calling the victim to the stand and calling her a whore.
These legal arguments are horrible artifacts of the Bush administration. Any lawyer should be ashamed to use them. Why does Obama continue to promulgate and EXPAND them? I don't think we can assume he is secretly against them any more.
April 8, 2009 5:14 PM | Reply | Permalink
Petey, Did you read the entire perspective? I think it explains your query.
Also, from my research (so far) as to the movement on the NSA wiretappng, etc. it appears as if Obama (Holder, et al.) are attempting to insulate this administration from the fallout from Bush's Adm.'s actions ...
Because the law was in place when they took office, they have exposure. Holder has only been in place a few weeks and has a great mess to deal with including this issue. It takes time to unravel and deal with issues of this magnitude! UNTIL Obama comes forward and publicly states that in all matters he supports the current enactment re: warrantless wiretapping and unequivably states he will not be moving forward with prosecution of Bush and cohorts for their part in illegal activities ever, I will not jump on the bandwagon of assumptions and presumptions.
That said, if he does do the above and enables the guilty to go without consequences and the current status of the NSA matter to go unchanged, then I will join in the march and most likely, yell the loudest.
But, for now, I will continue to research and pay attention awaiting to hear from Obama et al as to their set in cement position.
April 8, 2009 5:30 PM | Reply | Permalink
The Obama Administration appreciates your lack of a spine or an ability to perceive simple political phenomena.
April 8, 2009 5:53 PM | Reply | Permalink
GB2GBS.
It's something to keep an eye on, write letters about, etc. etc. -- but beyond that, what exactly do you suggest?
April 8, 2009 6:14 PM | Reply | Permalink
Petey,
How does it in anyway strengthen your stance or give you credibility to resort to snide snark?
I, in no way, belittled you or your perspective. It is my belief that the more information/perspectives/facts that one can obtain and review will allow the best method to learn and make an informed opinion.
Seldom does one resource or point of view deliver all the facts.
Sadly, it appears you are not interested in constructive communication or engaging with those that do not tout the same stances you do. Open lines of interaction allows all of us to review and better educate ourselves.
But, by resorting to baseless cheap shots - you only detract from the validity of your position, not enhance it.
April 8, 2009 7:01 PM | Reply | Permalink
"I, in no way, belittled you or your perspective. It is my belief that the more information/perspectives/facts that one can obtain and review will allow the best method to learn and make an informed opinion."
OK. Let's look at the facts. The Obama DOJ has claimed, in a motion presented before a judge, sworn in before a court of law, that it
a) Can continue to keep secret information about the illegal warrantless wiretapping program and its predecessor the TSP (which, may I remind you, was so egregious that even Ashcroft refused to sign it)
and
b) That it cannot be sued for anything ever with regards to illegal warrantless wiretapping because of sovereign immunity that raises the executive above the courts.
Now, what exactly is going to have to happen before "all the facts are in?" Will you have to open up your closet and find Obama himself with a hand cupped to your bedroom wall? I mean, he flip-flopped on FISA and now he's extending Bush's arguments to explicitly PREVENT any other information from coming to light.
It's denial to the point of delusion to think that this means he is meaningfully committed to being MORE open.
April 8, 2009 7:46 PM | Reply | Permalink
ORIGINALLY POSTED BY PseudoCyAnts on another blog (I hope he understands my 'lifting' this and placing here. However, this definitely fits here!)
'Obama did not flip-flop on his FISA position.
He clearly stated his opposition to a telecom immunity with backwards applicability, voted for every amendment that would have stripped it, and even stated his willingness to filibuster the legislation on this reason alone. Every one of those Amendments was defeated with a filibuster breaking majority (See: February 2008, Senate Roll Call votes 11-20). Obama publicly stated on the Senate floor, February 12, 2008, he believed that the FISA Amendments Act was an imperative piece of legislation for America's safety, yet was troubled by the telecom immunity part of the legislation. He did not say he would vote against it, if his position on telecom immunity was soundly defeated by a large majority of Senators.
The most relevant rejected amendment to the FISA Bill, which would have stripped out telecom immunity was the Dodd Amendment, Senate Roll Call Vote 15, February 12, 2008. It was defeated 31-67, and it takes at least 41 to successfully filibuster. Here's the list of Democratic Senators who voted against the Dodd Amendment:
Bayh (IN)
Carper (DE)
Conrad (ND)
Feinstein (CA)
Inouye (HI)
Johnson (SD)
Kohl (WI)
Landrieu (LA)
Lincoln (AR)
McCaskill (MO)
Mikulski (MD)
Nelson (FL)
Nelson (NE)
Pryor (AR)
Rockefeller (WV)
Salazar (CO)
Stabenow (MI)
Webb (VA)
You blame Obama, even though 18 Democratic Senators opposed his position? Again I ask, why do Feinstein, and Inouye keep getting free-passes, while Obama gets attacked unjustly?'
POSTED ON ANOTHER BLOG BY PseudoCyAnts (and I thank him!)
April 8, 2009 8:18 PM | Reply | Permalink
Come on, Aunt Sam. You're too lazy to make your own arguments and you don't even check to make sure that they're good ones.
Obama did not take a meaningful stand against telco immunity. He saw a political viable third way to get out of it. At that point, I gritted my teeth and stuck with him, constantly repeating Better Than McCain to myself.
Don't try to argue this. It's unbecoming, and anyway has nothing to do with the larger point at hand.
April 8, 2009 8:53 PM | Reply | Permalink
Okay, in the interest of full disclosure: I'm not a lawyer, I don't play one on TV, I do watch a lot of Law & Order and Perry Mason re-runs, and I didn't stay at a Holiday Inn Express last night. I didn't go to Cornell, ag school or "real" school. I got a piece of paper out of a 35 cent box of CrackerJacks that kind of looked like a law degree, but it was just a coupon for another box o' Jacks.
That being said, on the other hand, when you take stuff into account and being on balance, but not off kilter, I have to say my first inclination was, "and the issue here is?"
You file a motion to dismiss either because you believe the other side's case is frivolous and should never come to trial in the first place. The case is weak with not enough evidence to support the claims being or flies in the face jurisprudence, that legal precedence will support a decision favoring you.
The other instance is exactly the opposite. Your case is in the shitcan, you will likely lose based on case law, you've got no evidence to support you, so you file motion to dismiss in hopes something might stick. If you're lucky, the case gets booted. If not, you're going to trial. The defense has an obligation -- regardless of client -- to provide as aggressive a defense as the law allows. Anything else is malpractice.
A couple of other things to remember: as in all gov't agencies, you've got political appointees and career employees. This case -- and the preparation for it -- are not wholly the product of Obama admin lawyers. It is possible that they are simply going through their checklist of pre-trial motions, knowing full well, the case is going to trial. (If fact, instead of assuming they are dreading trial, it is possible they are looking for the court to make a definition of "policy" or legality for them.)
Let's just wait and see...
April 8, 2009 6:55 PM | Reply | Permalink
Jade -
If you're talking about the judicial process, "let's just wait and see" is an incredibly useless thing to say here. No one is suggesting that we throw procedure out the window and haul Obama and Holder over the ramparts.
If you're talking about the inclinations of the Presidency, I'm not sure we need much more to see.
You say the DOJ has to defend the government or else it's legal malpractice. You know what is also legal malpractice? Making legal claims that you know or should know to be false and specious.
There's a reason Gonzo can't find a job, and it's not because anyone doubts his recall. It's because they're aware that he, and Yoo, and Addington all made terrible legal arguments that no self-respecting lawyer would ever make.
Here, we have two options. Either the DOJ is committing legal malpractice by making disingenuous and specious arguments, or they really believe this stuff and are fighting to the core for it. I don't think either one of those alternatives is acceptable, and we certainly don't need to wait any longer to see that.
April 8, 2009 7:37 PM | Reply | Permalink
I mean, I don't oppose vigorous defense, whether the defendant is an alleged criminal or an allegedly criminal government.
But legal claims mean things. If the Obama DOJ wasn't intent on keeping hold of (and extending) these executive powers, why would they cite them as their defense? Let's say they go up to SCOTUS and win. What then? Is Obama going to say oops, my bad?
I mean, I just can't think of any reasonable scenario in which someone would think that expanding Bush era legal arguments telegraphs that you really want to tear down those arguments. I think it's denial. I feel the urge too. I canvassed for Obama for months. I was out there telling everyone I know to watch out for this guy since 2006.
But at a certain point, it is no longer credible to say "oh yes, Obama is doing this, but that's just his secret sneaky ninja plan to do the exact opposite of the thing he is currently trying to do." There are no opposite days in the high echelons of governance.
April 8, 2009 7:42 PM | Reply | Permalink