Or so the Slashdot headline claims.
Is this what the story and commentary claim it is? Big deal or not? I know nothing about the nuances of the law, so I’d like to hear input from the outside world…
Oh geez…Obama channeling Bush.
This is amazingly awful. I am floored that the Obama administration is not only going where Bush went but seeking to even expand on this beyond what even Bush never contemplated.
This truly scares me.
I am shocked (really) to my bones.
Dear Terrorists.
Use proper ENCRYPTION (google if in need of help selecting good encryption).
Someone forward this post to the terrorists please.
There I’ve just rendered all this abuse of the Constitution pointless. Now stop it you fuckers.
If he doesn’t defend the practice to some extent we spend the next four years prosecuting a lot of people, rather than doing the nation’s proper business.
There is considerably more nuance here than some of the commentators suggest, but the general conclusion of disappointment is appropriate.
The assertion of the state secrets privilege is justly criticized. It’s just a bad idea for the government to be able to wave away all suits, even constitutional challenges, on its say-so. Obviously there is a need to keep secret information from becoming public because of lawsuits, but there must be a better balance to be drawn–perhaps involving in camara review of the issue by the judge. It would have been nice for the administration to disavow the privilege as exercised by the previous administrations. So that’s disappointing.
But I’m not sure I can get behind the criticism of the sovereign immunity defense. Greenwald’s analysis is characteristically hyperbolic and mistaken in parts. After claiming that this is a massive and ridiculous extension far beyond what the Bush administration allowed, he tucks in this nugget that, “Since EFF’s lawsuit is the first to sue for actual damages under FISA and the Wiretap Act, it’s arguable whether this immunity argument applied to any of the previous lawsuits.” In other words, the Bush administration may never have needed to consider whether individuals can sue administration officials for damages under these statutes. So calling it an expansion beyond the Bush administration position is just rhetoric. The Bush administration had taken no position on sovereign immunity.
And while Greenwald refers to sovereign immunity as a “bizarre view that all claims of illegal government surveillance are immunized,” it isn’t really bizarre at all. It’s pretty basic law. In the absence of waiver, government officials are immune to suit. The relevant statute states that it permits claims against only a “person or entity, other than the United States.” So I see no reason (on my brief reading) to believe the DOJ isn’t making an entirely ordinary and correct legal argument.
Nor is the claimed immunity as expansive as Greenwald suggests. Unlike state secrets, the sovereign immunity defense still allows suits based on violations of constitutional rights. Congress has waived immunity for all constitutional suits that seek equitable relief (instead of damages). Moreover, note that even the statutory claims could probably go forward if these people were sued in their individual capacities instead of their official capacities. So sovereign immunity only protects those sued in their official capacities for violations of statutes–not individuals sued as individuals or those sued in their official capacities for constitutional violations. Thus, the sovereign immunity claim seems like a much less dangerous road than state secrets.
Arguably sovereign immunity is a bit of an anachronism and the administration should not assert it. But that argument is actually pretty radical. I don’t think anyone reasonably expected that the Obama DOJ would abandon sovereign immunity. If they start asserting sovereign immunity to constitutional claims, then I will be upset.
I’m not sure I understand why it’s not a constitutional claim. They are alledging they were wiretapped without a warrant. Why isn’t that a constitutional claim?
Some of the Plaintiffs’ claims are constitutional, and some of them are about violations of wiretapping and privacy statutes. It is the latter set that the DOJ sought to dismiss with the sovereign immunity defense.
So, warrantless wiretapping, and indefinite detentions. Time for a special prosecutor yet, or shall we go straight to impeachment?
Regards,
Shodan
Absolutely! I’ve been pining for one for ages!
Of course they’d need to go after Bush & Co. So far all the Obama administration has done is submit a brief on why they think the government should not be held accountable in the face of pending lawsuits.
If Obama starts actually illegally spying on us too then he should get busted as well.
More than disappointing to me. Asking for an outright dismissal, rather than finding ways to protect the information, is an unwarranted, and unjust expansion of the privilege. Obama should be ashamed, first for voting for telecom immunity, and now going as far as Bush to try and hide the truth from the justice system.
And this is exactly why I keep having trouble believing this story. **Shodan **and his ilk are constantly searching for any reason to drag Obama down to Bush’s level that any potential misstep or minor deviation from sainthood is decried as The End Of Civilization As We Know It. If Obama can be painted to be as bad as Bush, then Their Hero is as *good *as Obama, right?
Oh, and you know how we worship Obama, and drink his kool-aid, and think he’s the Messiah? All that looks really stupid on us now, because it turns out that he’s just human. Of course, we never said he was perfect, we just said he was better than the choice *they *offered us…
It’s gotten so bad that my first reaction to any anti-Obama story is, “Well, it can’t possibly be as bad as they want us to think it is, because all those other instances of Obama malfeasance ended up being exaggerated or completely fabricated.”
I’m thinking it’s a bit late in the game to impeach Bush et al at this point, ehe? And I’m still waiting for his invasion of Iran…
As for the OP…I’m taking a wait and see on this. It seems subtly different than what Bush and the previous administration took, though I’m no lawyer nor do I play one on TV. My (uninformed) take so far is that this is like some of the other things he’s done…it only looks similar to Bush’s tack on the surface…but that there are subtle but meaningful differences in how it will be implemented.
Time will tell. Perhaps Bricker will wander into the thread and give his more informed take.
-XT
If I was American I’d say “Yes” to that question of investigating the legality of the actions and possible procesections of any administration that was involved and I’d have been and still am a major Obama supporter.
You on the other hand would be only looking for some political point scoring out of it and not care about the actual issue.
Impeach? No…unless it is somehow necessary, even after-the-fact, to remove some legal impediment to throwing is smarmy ass in jail for the rest of his life.
And Iran? What has that to do with anything? Iraq not enough for you?
I applaud your consistency of reaction.
In my view, this is a correct course of action for Obama to take, and the state secrets doctrine should be applied here.
Um…you can’t impeach a former president. That was the point.
Well, I wasn’t among the crowd ranting and raving about how Bush et al was going to invade Iran (not saying you were either). See, it goes along with the impeachment theme…and the ‘OMG! Bush is going to set aside the elections and make himself God Emperor of the WORLD!’…and ‘OMG! Bush is going to outlaw abortion’…etc etc.
And FTR, I am not a big fan of the Iraqi invasion.
-XT
Kinda curious just how far this whole “state secrets” business can cover the government?
I appreciate that the government really does have state secrets to protect and it is in all our best interests to not forcibly drag it all out into the light of day.
But where does it end? Honestly it looks more and more like the ultimate, impregnable retreat to allow the administration/government to do pretty much any damn thing it pleases. Nevermind if they stomp on the Constitution along the way…who’s to gainsay them? It’s “state secrets” so back off!
Looks like a god-awful monster loop hole that needs closing somehow.
Maybe. Do you have information I don’t? We don’t know the facts of what is being hidden and why. It may very well be that it SHOULD be applied. But for what end is the issue. Certainly if there are real national security issues (and not just ass covering), that evidence should be excluded. But there are ways to deal with the case without doing damage to national security. I greatly disagree with their assertions that the doctrine should be used to destroy standing and the case itself.
The brief Obama’s team filed Available here thanks to our fine friends at EFF includes allegations that the ENTIRE SUIT needs to be dismissed. “Dismissal of these allegation would thus be appropriate on the ground that its very subject matter would inherently risk or require the disclosure of state secrets. But, to be clear, the Government does not seek dismissal merely on this basis, but seeks summary judgment, as permitted by Kasza, on the ground that the Government’s privilege assertions exclude the very information necessary for plaintiffs to establish their standing or a prima facie case, as well as information relevant to the defense of both the Government and personal capacity defendants.” That kind of overbroad assertion, without even considering the details of the evidence and risks to national security or how they could be dealt with by the court, is, to my mind, inexcusable.
I was against that stuff “under” Bush, and I am still dead set against it “under” Obama. I don’t care who is in charge, I will be against it.
Is there any confirmation of this story from a *reputable *source?