June 1, 2009
Obama's support for the new Graham-Lieberman secrecy law
By Glenn Greenwald
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
It was one thing when President Obama reversed himself last month by announcing that he would appeal the Second Circuit's ruling that the Freedom of Information Act (FOIA) compelled disclosure of various photographs of detainee abuse sought by the ACLU. Agree or disagree with Obama's decision, at least the basic legal framework of transparency was being respected, since Obama's actions amounted to nothing more than a request that the Supreme Court review whether the mandates of FOIA actually required disclosure in this case. But now -- obviously anticipating that the Government is likely to lose in court again (.pdf) -- Obama wants Congress to change FOIA by retroactively narrowing its disclosure requirements, prevent a legal ruling by the courts, and vest himself with brand new secrecy powers under the law which, just as a factual matter, not even George Bush sought for himself.
The White House is actively supporting a new bill jointly sponsored by Sens. Lindsey Graham and Joe Lieberman -- called The Detainee Photographic Records Protection Act of 2009 -- that literally has no purpose other than to allow the government to suppress any "photograph taken between September 11, 2001 and January 22, 2009 relating to the treatment of individuals engaged, captured, or detained after September 11, 2001, by the Armed Forces of the United States in operations outside of the United States." As long as the Defense Secretary certifies -- with no review possible -- that disclosure would "endanger" American citizens or our troops, then the photographs can be suppressed even if FOIA requires disclosure. The certification lasts 3 years and can be renewed indefinitely. The Senate passed the bill as an amendment last week.
The debate over whether there is value in disclosing these specific photographs is entirely misplaced. That isn't how open government works. The burden isn't on citizens to prove that there is value in disclosure. Everything that government does is supposed to be transparent to the public unless there is a compelling reason for secrecy -- and the whole point of FOIA always has been that mere embarrassment, the mere fact that information reflects poorly on our government, isn't a legitimate ground for concealment. That's a critical principle for open government. This new law explicitly guts that principle. It institutionalizes the pernicious notion that secrecy is justified where disclosure would reflect badly on the Government and thus "endanger" American citizens and/or our troops.
Combine all of this with the increasingly disturbing spectacle taking place in a California federal court in the Al-Haramain case -- where the Obama DOJ is on the verge of being sanctioned by a federal judge for defying the court's order to make available documents relating to Bush's illegal eavesdropping activities -- and the infatuation with excessive presidential secrecy, the linchpin of government abuse, appears alive and well in the new administration. Is there really anyone who wants to argue that defiance of a federal court's order and enacting a new law authorizing suppression of torture evidence -- the disclosure of which is compelled both by courts and FOIA -- are remotely consistent with anything Obama said he would do, or remotely consistent with what a healthy democratic government would do?
Please read the complete article at:
http://www.salon.com/opinion/greenwald/2009/06/01/photos/index.html------------------------------------
Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case
Evan Hill
The Recorder
May 26, 2009
Government lawyers trying to fend off a much-watched warrantless wiretapping case in federal court now face sanctions and the possibility of a judgment that the United States committed illegal surveillance (pdf), following an order filed on Friday by Northern District of California Chief Judge Vaughn Walker (.pdf).
Walker, bringing to a head months of volleying between the government, the plaintiffs and himself, ordered Justice Department lawyers to explain why he should not essentially enter a default judgment against the government for violating the Foreign Intelligence Surveillance Act by spying on the Al-Haramain Islamic Foundation.
The government has refused to obey court orders by repeatedly stonewalling Walker's attempt to move the case forward, Walker wrote.
If he rules as threatened, Al-Haramain would win without forcing the government to acknowledge surveillance.
The government unwittingly set the Al-Haramain litigation into motion years ago by accidentally disclosing to the charity a classified document that reportedly shows a summary of intercepted phone conversations.
The government retrieved the document and has asserted the state secrets privilege to try to dismiss the Al-Haramain case, on the grounds that without the classified information, Al-Haramain can't prove surveillance.
Government officials, including the director of the National Security Agency, are refusing to cooperate "because, they assert, plaintiffs' attorneys do not 'need to know' the information that the court has determined they do need to know," Walker wrote.
Please read the complete article at:
http://www.law.com/jsp/law/careercenter/lawArticleCareerCenter.jsp?id=1202430954779&rss=careercenter
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