Newsweek: Obama Secrecy Watch II: A State Secrets Affidavit Straight from the Bush Era

[kpete]

Obama Secrecy Watch II: A State Secrets Affidavit Straight from the Bush Era
Michael Isikoff

When Attorney General Eric Holder invoked the “state secrets” privilege to quash a lawsuit alleging illegal National Security Agency spying last Friday night, his department’s lawyers sounded a lot like those who worked for President George W. Bush. In fact, they justified the action by filing an affidavit from President Obama’s director of national intelligence that is nearly identical to one filed by President Bush’s intelligence director two years ago.

The strikingly similar affidavit—making the same arguments in the almost exactly the same language—is among the strongest examples yet of how Obama administration officials are adopting Bush-era secrecy positions in major national security cases.

Holder’s move came in the case of Shubert v. Obama, a lawsuit filed in 2006 by four residents of Brooklyn, New York. They allege that their overseas phone calls were illegally intercepted by the NSA as part of a massive “dragnet” of warrantless surveillance ordered by Bush after the Sept. 11 attacks.

“It is my judgment that sensitive state secrets are so central to the subject matter of the litigation that any attempt to proceed in the case will…risk exceptionally grave damage to the national security of the United States,” national intelligence director Dennis Blair wrote in an affidavit submitted by Justice Department lawyers on Oct. 30. If that language sounded familiar to the court, it’s because it was: “It is my judgment that sensitive state secrets are so central to the subject matter of the litigation that any attempt to proceed in the case will…risk exceptionally grave damage to the national security of the United States,” wrote J. Michael McConnell, Bush’s intel chief, in an affidavit filed on May 25, 2007, in the same case.

more:
http://blog.newsweek.com/blogs/declassified/archive/2009/11/02/obama-secrecy-watch-ii-a-state-secrets-affidavit-straight-from-the-bush-era.aspx

[Luminous Animal]

1. Greenwald had a few things to say about this on Sunday.

http://www.salon.com/news/opinion/glenn_greenwald/2009/11/01/state_secrets/index.html

[sandnsea]

2. Holder's Statement

http://obama-mamas.com/blog/?p=541

“The Department of Justice asserted the state secrets privilege in a case today to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country. I authorized this significant step following a careful and thorough review process, and I did so only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.

“Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation. We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security. The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight...."

[katandmoon]

4. What a fucking crock.

[still_one]

3. So much for reversing the bush era of secrecy /nt

[NYC_SKP]

5. This is much different from the past.

Judges are allowed to see the materials being held for reasons of national security to demonstrate the claim.

Bush didn't and would never have done that.

Big difference.

[noise]

6. I don't see that

It seems the state secrets invocation is designed to have the judge dismiss the case without any review of classified evidence.

[NYC_SKP]

9. Read this excerpt:

You can read the whole piece, too.

~snip

"The Bush administration invoked the privilege numerous times in lawsuits over various post-9/11 programs, but the Obama administration recently announced that only a limited number of senior Justice Department officials would be able to make such decisions. It also agreed to provide confidential information to the courts in such cases.

Under the new approach, an agency trying to keep such information secret would have to convince the attorney general and a panel of Justice Department lawyers that its release would compromise national security."

~snip~

http://www.google.com/hostednews/ap/article/ALeqM5j9n5u8khGqNQT6DTlcKGV6ouKqfQD9BLULIG2

:patriot:

[ipaint]

12. Well that's convenient. n/t

[Luminous Animal]

15. In this case, it is a motion to dismiss.

That is, the Obama DOJ is blocking access to confidential information to the courts.

[FrenchieCat]

7. Didn't know Newsweek was that interested in State Secret issues

or they weren't when Bush enacted it....
In fact, you could have heard a pin drop at that time.
Things sure are different now! Wonder why?

[ipaint]

10. Attack the messenger.

That is all you've got.

[flyarm]

13. sometimes these old threads are fun to read!!

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=132x6390859#6390866

[emulatorloo]

18. So are old stories - "Mike Isikoff and Newsweek Go To Bat Against Richard Clarke For The White House

http://www.theleftcoaster.com/archives/001348.php

Sunday :: Mar 21, 2004
Mike Isikoff and Newsweek Go To Bat Against Clarke For The White House

Michael Isikoff and Evan Thomas of Newsweek have attempted to get the jump on Richard Clarke's 60 Minutes appearance tonight by running their own interview with him from last week. Isikoff, who made a name for himself being led around by the nose by Lucianne Goldberg, Ken Starr, and Linda Tripp during the Lewinsky debacle, shows more evidence of the same with this story. Although Isikoff and Thomas run some of Clarke's comments in this piece, they run a good deal of the White House's discrediting campaign against Clarke as well:

"Clarke, who was interviewed by NEWSWEEK last week, is telling his story to the world: to "60 Minutes" on Sunday night, in testimony this week to the commission investigating the 9/11 attacks and in his new book, "Against All Enemies," just out. Clarke portrays the Bush White House as indifferent to the Qaeda threat before 9/11, then obsessed with punishing Iraq, regardless of what the evidence showed about Saddam's Qaeda ties, or lack of them.

The Bush administration is already pushing back. A White House official told NEWSWEEK that Bush has "no specific recollection" of the post 9/11 conversation described by Clarke, and that records show the president was not in the Situation Room at the time Clarke recalls. "His book might be called 'If Only They Had Listened to Dick Clarke'," said an administration official."

This is exactly the same line of attack Rove used against Paul O'Neill, in trying to discredit what he was saying by portraying O'Neill as being bitter that no one listened to him anymore, without ever dealing with what O'Neill actually said.

MORE AT LINK

[FrenchieCat]

16. I attack the agenda....cause that's all they've got......

[emulatorloo]

19. "Isikoff, who made a name for himself being led around by the nose by Lucianne Goldberg, Ken Starr,

and Linda Tripp during the Lewinsky debacle"

See the blog I linked to below.

It is good to know these things.

[TexasObserver]

8. Recommend

[ipaint]

11. The same Bush policies.

The case of Shubert v. Bush is one of several litigations challenging the legality of the NSA program, of which the Electronic Frontier Foundation is lead coordinating counsel. The Shubert plaintiffs are numerous American citizens suing individual Bush officials, alleging that the Bush administration instituted a massive "dragnet" surveillance program whereby "the NSA intercepted (and continues to intercept) millions of phone calls and emails of ordinary Americans, with no connection to Al Qaeda, terrorism, or any foreign government" and that "the program monitors millions of calls and emails . . . entirely in the United States . . . without a warrant" (page 4). The lawsuit's central allegation is that the officials responsible for this program violated the Fourth Amendment and FISA and can be held accountable under the law for those illegal actions.

Rather than respond to the substance of the allegations, the Obama DOJ is instead insisting that courts are barred from considering the claims at all. Why? Because -- it asserted in a Motion to Dismiss it filed on Friday -- to allow the lawsuit to proceed under any circumstances -- no matter the safeguards imposed or specific documents excluded -- "would require the disclosure of highly classified NSA sources and methods about the TSP and other NSA activities" (page 8). According to the Obama administration, what were once leading examples of Bush's lawlessness and contempt for the Constitution -- namely, his illegal, warrantless domestic spying programs -- are now vital "state secrets" in America's War on Terror, such that courts are prohibited even from considering whether the Government was engaging in crimes when spying on Americans.

That was the principal authoritarian instrument used by Bush/Cheney to shield itself from judicial accountability, and it is now the instrument used by the Obama DOJ to do the same. Initially, consider this: if Obama's argument is true -- that national security would be severely damaged from any disclosures about the government's surveillance activities, even when criminal -- doesn't that mean that the Bush administration and its right-wing followers were correct all along when they insisted that The New York Times had damaged American national security by revealing the existence of the illegal NSA program? Isn't that the logical conclusion from Obama's claim that no court can adjudicate the legality of the program without making us Unsafe?

http://www.salon.com/news/opinion/glenn_greenwald/2009/11/01/state_secrets/index.html

No torture pictures despite court order, fighting to keep the british courts from making public the worst of the torture, and covering up illegal spying. Just like Bush did.

[flyarm]

14. all i can do is shake my head..in disgust. eom

[emulatorloo]

17. So did Isikoff do a lot of reporting on Bush Era State Secrets priviledge?

Did he ever dig in on Cheney's obvious lies.

Maybe he did and I missed it.

(This is not to say that he shouldn't investigate this, I'm just asking. In my mind his main claim to fame is encouraging Linda Tripp)

[niyad]

20. plus les choses changent, plus elles restent les mêmes