In his latest blistering salvo against DOJ's legal brief filings, Glenn Greenwald makes a number of very potent and alarming charges against the Obama DOJ that unfortunately (or fortunately, depending on how you look at it) don't stand up well under closer scrutiny.

As a former constitutional attorney and occasional contributing writer for libertarian think-tank, the Cato Institute, you might expect Greenwald to really know his stuff when it comes to matters of constitutional law.

But it's hard to see how one can interpret some of Greenwald's more strident recent attacks on the administration's legal positions as not being either ill-informed or deliberately misleading.

Alleging that the Obama administration is continuing the Bush policy of "expanding" states secret powers and even claiming new powers for itself, Greenwald writes (emphasis mine):

"...beyond even the outrageously broad 'state secrets' privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity..."

In similarly breathless tones, he writes at another point that, with its latest legal filing, the Obama administration has created "a brand new 'sovereign immunity' claim of breathtaking scope -- never before advanced even by the Bush administration."

Let's unpack and inspect each of these alarming claims in turn:

Claim 1: The Bush Administration Dramatically Expanded the Scope of State Secrets Powers and the New DOJ Is Carrying these Expanded Powers Forward

The first part of this claim isn't a claim about the Obama administration at all, but nevertheless, it provides a crucial underpinning of Greenwald's broader greivances.

Only, as Gertrude Stein once famously remarked, "There's no there there."

We who criticized the Bush administration may be correct in saying Bush grossly abused his state secrets powers, but granting that fact, it's not at all clear that Bush actually expanded the scope of these powers.

Greenwald frequently asserts that, through previous legal precedent, state secrets powers allowed the executive to block specific pieces of evidence from the courts, but that the executive before Bush never had the power to dismiss whole cases or to prevent non-privileged evidence from undergoing judicial review.

But there are two previous legal precedents that, when taken together, show that both in principle and in practice, the executive already held this power long before Bush.

The first of these precedents is the one that originally established "state secrets" powers in the US, the Supreme Court decision in the case of US v. Reynolds. This decision explicitly granted the executive branch the authority to invoke state secrets privileges in its own discretion, without the privileged evidence being subject to any form of judicial review or further legal challenge.

In other words, the decision gave the executive branch and only the executive branch the power to say what is or isn't a privileged state secret.

Like it or not, this precedent alone effectively gives the executive branch the power to dismiss any civil lawsuit it can reasonably claim touches on national security issues. All the government has to do to shut down any such trial from this point forward is to declare whatever evidence is entered into consideration off limits under state secrets powers.

Technically, such a case could still be brought before the courts, but since the government has the authority to declare any evidence even potentially entered into consideration as privileged, it can ultimately force the case to be thrown out of the courts on the basis that it has no legal standing.

But that's not the only precedent that undermines Greenwald's assertions on state secrets: In 1992, a federal appeals court decision ruled that the courts can't even allow a trial to proceed if doing so might touch on evidence protected under state secrets powers.

The court ruled that a previous court's decision to dismiss a state secrets related case had to stand without the appeals court even taking any new evidence, whether it was declared privileged or not, into consideration--in fact, the court ruled that it couldn't even examine the new evidence, because the application of the state secrets privilege didn't permit it:

This time the plaintiffs file over 2,500 pages of unclassified documentary evidence supporting their claims that the contractors were negligent in their design and implementation of the weapons systems aboard the Stark. The appeals court finds that regardless of the amount of evidence entered, to allow the trial would be to potentially infringe on the US government's "state secrets" privilege (see March 9, 1953). "[N]o amount of effort could safeguard the privileged information," the court rules.

So previous precedent held that the executive could declare any particular piece of evidence it wanted off limits, and the 1992 federal appeals court decision ruled that even allowing a trial that might bump up against state secrets privileged evidence to proceed posed an unacceptable risk to national security.

Putting these two rulings together, the legal precedent for the government to throw out any case it likes under state secrets privileges was already established even before Clinton took office. In using states secret powers to block public scrutiny of his torture and wiretapping programs, Bush didn't actually claim new legal authority for himself, as Greenwald argues. He just grossly abused legal authority that he already had.

Claim 2: The Obama Administration Has Created "a Brand New 'Sovereign Immunity' Claim of Breathtaking Scope"

This part of Greenwald's argument is a little bewildering to see coming from someone with a legal background. 

The United States federal government, like every government in history, has always been understood to enjoy the protections of sovereign immunity--meaning, the federal government can't be sued unless it consents to being sued.

This isn't a new claim of "breathtaking scope": it's been the law of the land from the beginning of the US legal system, with exceptions only in a few narrow circumstances defined in statute under which the federal government has waived its sovereign immunity to a limited extent.

Though his motives are likely much purer, Greenwald writes about "sovereign immunity" as credulously as right-wing pundits wrote about "habeas corpus," acting as if it were some novel, controversial legal theory rather than a bedrock principle of the US legal system.   

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In offering these responses to Greenwald, it's not my intent to dismiss his arguments all together, just to set the record straight on a few of his more sensational and pointed recent criticisms. I have no doubt that Greenwald's commitment to government accountability and the defense of civil liberties are genuine and that his contributions in these areas are valuable.

I also have no doubt that his recent attacks on President Obama's DOJ are meant to shed light into dark places--places that could definitely stand to see more light.

But unfortunately, I think he's misinterpreting the administration's actions and motives in certain fundamental ways, looking for instantly-gratifying, short term outcomes for problems that require more carefully measured approaches to stand any chance of achieving substantive long-term change.

Sensationalizing every legal brief filing that comes along as if each one is the final nail in the coffin of democracy isn't helping to foster the kind of calm, level-headed approach to policy-making we need right now.

And among the many lessons the Bush years should have taught us, isn't one that the executive branch doesn't always have to claim new powers to make itself more powerful? If left unchallenged, it can usually achieve the same effect simply by abusing powers it already has.