I think I made fun of this very kind of post this morning.

Reductio ad Greenwald. All history begins with Bush, ends with Obama, therefore all criticism is relative to change meme thereby striking the history of state secrets from the conversation.

Let the outrage commence.

I would reccomend cursory research into executive orders as it relates to state secrets in order to witness the building of national security architecture from its initial commencement with the OSS.

The Obama administration is continuing an SOP that reaches back to before anyone currently living on Earth was alive.

Therefore, any problems with state secrets and protected information concerning foreign and domestic spying are woven into the fabric of American government. They predate the Cold War, and predate the Great Wars.

Devins wasn't the only one. Greenwald and the gang at Balkinization were making the same point last year during the election as well. President's don't like to give back power claimed/established by a prior President. It literally has to be taken from them by Congress and/or the Courts.

Congress showed little desire to roll back the Bush Admin. Of course they'll likely have more stomach to roll back Obama just because that's how things work for the past 30+ years when a Dem is President following GOP Administrations expanding Presidential power.

The Courts were mixed. They allowed some expansion of power that wouldn't have been thought possible in 60s or 70s. They also slowed down some of the more over-the-top attempts by the Bush Admin, and quite possibly would have slowed down a few more (such as domestic spying) if it had moved up the courts faster and more openly.

I suspect we'll continue to see the Obama Admin fighting to retain the expansive powers claimed/grabbed by the Bush Admin, while Congress and the Courts pull back *some* of them.

John

Cheney promised this would happen.

I think we should be clear on the "Dark Side." The "Dark Side" refers to USING torture and Warrantless Wiretapping around the FISA Court. We're clear that Obama isn't using either one, although he is hiding the information. I'm not happy that he's supporting State Secrets, but I'm not willing to condemn him (as of now) for not using Torture or Warrantless Wiretapping.

How can we say he is not warrantless wiretapping?
That is what the EFF case is about and its apparently a state secret whether he is or isn't.
He says he is not torturing, but he hasn't said we're not still hoovering all the electronic data, and we sure have no evidence that that has stopped. The secret data rooms are still there or at least no one has said otherwise.

Tell me how this sounds:
1. The Obama DOJ puts forward an argument that not only asserts some of the worst abuses of the Cheney DOJ, but makes some even more outlandish claims of executive power.
2. The Obama DOJ throws said argument against the judicial wall.
3. It doesn't stick, and a federal judge tells the Obama DOJ that they're full of crap.
The result: the establishment of the beginnings of counter-Unitary Executive case law, which would have been really handy to have earlier this century.
Crazy like a fox? I'm just sayin'...

i hate this decision. it's bush on steroids... which makes me think. obama deserves criticsm for this stance. a lot of criticism. he must expect it. is it to much to think that perhaps he is trying to get the courts to soundly reject this nonsense by staking out the most expansive view he can.

maybe this is a strategic ploy. granted it's one that perhaps overestimates the power of his supporters to reject him and drive the narrative that this is bad whether obama does it or not.

i'm rambling and will stop.

i only want to point out that, yes, this is not the first time the obama doj has staked out repugnant positions on state secrets and exec privilege. i agree these positions are outlandish... what will the courts do?

peace out.

I have no knowledge about what's driving this. I can only speculate.

Lawyers who have their teeth sunk into a claim of privilege and aren't going to let it go until someone much higher covers their asses by ordering it? I have to concede that possibility if only because I can kind of see myself doing that. Losing a motion that you've argued the hell out of isn't malpractice. Giving up a privilege claim without being ordered to, either by the client or the court, may be.

Orders from the top to defend these things to the bitter end? Also entirely possible. Equally possible is that we've got the lawyers in the courtroom with their teeth sunk into the privilege and Holder and Obama are choosing to not to stop them. Those two possibilties come to the same thing and, again, if so, one can only speculate as to motive. Genuinely scared of exposing important intelligence assets? Worried that if this stuff comes out, indictable conduct of Bushians will follow and they don't want anyone claiming they eased up specifically to let that happen? Hiding their own spying on U.S. citizens? All of the above? Dunno. Can't say. Insufficient data (which, is of course, the point).

What I can say is that regardless of their motive, whether black or white or some complex shade of gray, I want the maximilist argument they're making actually litigated and adjudicated. I don't want a voluntary change of position by a particular administration, I want a damn ruling by a judge, and, ultimately, by nine particular judges. And that literally can't happen unless we have two real parties in interest vigorously arguing the matter. Some rigamarole about actual case or controversy, as I recall.

I want it litigated and adjudicated because a decision not to press a privilege in a given case, or to cease asserting privileges in any number of cases, would not be precedential. If Obama or Holder decided to dial down the claimed extent of the state secrets privilege to its pre-Bush levels for the next eight years, all that means is that the Bush version of the privilege would still be there waiting to be renewed by President Bachmann or Jenna Bush or Doug Feith or whoever the hell else we run to the next time we're scared stupid.

Having said all that, however, I confess to a concern that the government will ultimately win, which, of course, would make things worse. I was also going to say that a win was assured if the makeup of the Supreme Court doesn't change before it gets there, but, having thought about it, I'm not so sure. On one hand, the record of the Dreadful Four thus far is one of slavish, drooling subservience to presidential power. On the other hand, though, at least two of those four were rather less deferential to the president's authority when the president in question was a Democrat. I can't really say how Roberts, Scalito and Grumpy would vote if their authoritarian instincts were pitted against their partisanship.

But I digress. Whether this is Obama putting on the Ring of Power, Obama deliberately deciding to litigate this maximalist argument to force the Judicial Branch to put a stake in its heart, or whether its just Obama letting it run on cruise control because he's just got too many other balls in the air to give a damn right now, is unknown (except of course for our stable of resident kreskins Who Have the Power to See the Dark Secrets Lurking in the Inntermost Minds of Men.) It is also quite irrelevant. What is relevant is that if they stop doing what they're doing, the question doesn't get forced to a judicial determination, which I think needs to happen.

Two related, but tangential, closing thoughts.

First, I don't get all the people who are wringing their hands over how tenuous the legal position supposedly is. Frankly, I don't know how tenuous it really is. I read the brief in the case talking about here, but what I know about the state secrets privilege is limited to a couple of dimly recollected cases I read in Evidence and/or Federal Jurisdiction almost two decades ago. Thus, I can't know whether the argument is solidly supported by the cases the government cites without looking them up and reading them, and that's too damn much work for me to even contemplate tonight.

But if the position really is as tenuous as some of these folks are indicating, then I don't get what they're worried about. If the court(s) agree that the argument is tenuous, that means the government loses. (Maybe its just me. I've never once in my whole career had a judge say, "boy, your argument is really tenuous. You win!" On the contrary, I don't actually recall ever seeing the word "tenuous" in a judicial opinion other than in close proximity to the word "sanctions.")

And if the government's argument wins, well that at least tends to undercut the contention that the argument is tenuous, now doesn't it? Bad, end of freedom, etc., maybe, but not tenuous.

Second, I'm not seeing where the angst over "rule of law" is coming from on this thread. Parties represented by talented counsel are arguing a privilege question before an Article III judge who will make a decision, which will be appealed. If it doesn't end up in the Supreme Court, it will only be because they deny cert. Somehow, that all just looks pretty Due Processy to me for activites that are supposed to be an attack on the rule of law.

Dear Readers,

Please, is someone available to get through to US President Obama, US AG Holder and others in the Executive, Judicial and Legislative Branches of our 'We the People' US Government to also remind him of his and their written promise to our US Constitution, False Claims Act, prevention of Illegal Signing statements, Illegal Wiretaps, prevention of Torture, Illegal rendition, legal//Illegal Secrecy, and to the complete abolishment of the enactment of the death penalty ecetra and to his and their promise to Whistleblowers and his and their written promise to support the 'FEDERAL EMPLOYEE WHISTLEBLOWER PROTECTION RESTORATION ENHANCEMENT ACT (that he has already allowed to be voted out of the current so-called Stimilus Bill and with a seemingly illegal Signing Statement).

(Also, please note and remember California AG Garcetti who properly did his job and was retaliated upon and lost his case in our US Supreme Court).

Again, please note that it is not my intent to offend anyone and I hope TPM will allow me to apply any corrections, modifications, clarifications and/or retractions as necessary.

Thank you and all for your time and consideration.

Sincerely,
Tpmreader

Two comments for further thought.

1. Why can't a judge be granted access to classified information. Apparently, the DOJ lawyers who are claiming "State Secrets" know the information for which they are claiming "State Secrets". Otherwise, they are arguing in the blind about something they know nothing about. If these bureaucrats have access to this information, why can't a judge have that same access?

2. How many of the Bush appointees in the DOJ have been replaced so far and is this motion being made by a Bush appointee or by an Obama appointee?
.

I only partially read your blog comment reply.

To my comprehension and seemingly within public knowledge is that I briefly mention that the FISA Courts have been in existence for some time and have seemingly successfully provided all the necessary assurances and concerns to successfully accomodate your concerns.

All cards on the table: I'm a consultant to DoD, I've met the fellow who created (or managed the creation of) what was originally TIA, and am a big fan of state secrets. I don't want my projects to go public - not because they're immoral or illegal, but because I think that would help our actual or potential enemies. So, I'm pretty hawkish, though still firmly a Democrat who drove to and then tromped through -10F in Iowa to help get Obama elected. But this hawkish, strong Obama supporter is very uncomfortable with this decision. Here's why.

A core feature of domestic (and international)surveillance looking for terrorist activity is network analysis. The search is not only for key words, though that certainly exists. The new and improved version of the search is to look for networks of communication that have certain patterns. Phone companies have been doing this for years to tell, for example, when you're going to move so that they can offer you their services on the other end of your move. As you prepare to move, the pattern of your calls changes in complex but identifiable ways. Groups of criminals who need to keep their existence secret also create tell-tale patterns of communication, so-called dark networks. That's why the government is interested in who someone calls or emails, and who each of those interlocutors in turn communicate with. The investigator needs to see the broader network of communication to identify the bad guys. So far, so good. These bad guys are very bad indeed, and need to be found.

The problem is that anyone who believes the records of these secorded communications are deleted is very naive. Once the government has these records, they are not going to give them up. There are rationales for this, such as building a better data-base for the searching software to learn who's good and whose bad. This can be positioned as not identifying individuals, and therefore not invading privacy until a "bad" pattern is identified. But, with these patterns, it is very easy to identify individuals unerringly. Very easy. Under an Obama administration, this is probably OK. But, if we ever elect another Nixon, we're in real trouble. Nixon was very comfortable with using the powers of his office to conduct personal and instituional vendettas. Many of my friends are neo-cons (the real deal, working with Scooter Libby and the like), and when I put this scenario to them, every one of then pauses and says, "Yeah, that would be a problem."

So, with no judicial check on this program, we're making a bet that we'll never elect another Nixon. That's not a bet I'm willing to make.

I was disappointed by Obama's decision on FISA, and I'm worried by this decision. It's hubris to think we'll never make a Nixon-style mistake again. We've already shown that we can slip up twice - he was re-elected.

My (totally uninformed) guess is that this is one of those issues where Obama needs their cooperation on national security issues more than he needs their contrition (or conviction).

Think about it - investigating these crimes (and I believe they were crimes) would require the cooperation of people who are secretive by nature, and may not universally support him in this goal.