Unlike in the prior cases where the Obama DOJ embraced the Bush theory of state secrets -- in which the Obama DOJ was simply mimicking arguments previously made in those lawsuits by the Bush DOJ -- the motion filed on Friday was the first response of any kind to this lawsuit by the Government. EFF filed the lawsuit in October but purposely agreed with Bush lawyers to an extension of the time to respond until April, in the hope that by making this Obama's case, and giving his DOJ officials months to consider what to do when first responding, they would receive a different response than the one they would have gotten from the Bush DOJ. That didn't happen. This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used not only when they are taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance.This rant from Greenwald comes after a DOJ decision was quietly slipped through on Friday not only defending previous immunity decisions on warrantless surveillance, but expanding them. The DOJ basically ruled that you could not sue the government for surveillance without a warrant, but could only sue them for an improper disclosure of any information they might find while surveilling you without a warrant or cour oversight of any kind. Greenwald continues:
Equally difficult to overstate is how identical the Obama DOJ now is to the Bush DOJ when it comes to its claims of executive secrecy -- not merely in substance but also tone and rhetoric. I defy anyone to read the Obama DOJ's brief here and identify even a single difference between what it says and what the Bush DOJ routinely said in the era of Cheney/Addington (other than the fact that Bush used to rely on secret claims of national security harm from Michael McConnell whereas Obama relies on secret claims filed by Dennis Blair). Even for those most cynical about what Obama was likely to do or not do in the civil liberties realm, reading this brief from the Obama DOJ is so striking -- and more than a little depressing -- given how indistinguishable it is from everything that poured out of the Bush DOJ in order to evade all legal accountability.And EFF weighs in:
Senior Staff Attorney Kevin Bankston at the Electronic Frontier Foundation, which is suing the government over the warrantless wiretapping program, notes that the government has previously argued that changes to the Patriot Act protected the government from lawsuits surrounding eavesdropping. But he says that this is the first time that they've made the case that the Patriot Act protects the government from all surveillance statutes.We knew he was bad on FISA, but I didn't expect it to be this bad.
"They are arguing this based on changes to the law made by the USA PATRIOT Act, Section 223," Bankston said in an email to Raw Story. "We've never been fans of 223--it made it much harder to sue the U.S. for illegal spying, see an old write-up of mine at: http://w2.eff.org/patriot/sunset/223.php --but no one's ever suggested before that it wholly immunized the U.S. government against suits under all the surveillance statutes."