Obama and State Secrets? Shhh…

Silence breaking on key legal filing

Obama, like Bush, decides to limit what the courts and the people can know about warrantless wiretapping. Isn’t that a big story?

Not just yet.

On April 3, the Holder Justice Department filed arguments in Jewel v. National Security Agency, a lawsuit being waged by the Electronic Frontier Foundation on behalf of five people who claim that their constitutional rights were abridged when they were subjected to the Bush administration’s warrantless wiretapping program.

While the suit was originally filed under Bush, the EFF and Justice agreed to stay the date of the Department’s filing until after the election. That would mean that a new administration would be responsible for litigating the case, one the EFF surely hoped would be more receptive, given that it looked likely that the White House would be won by a candidate whose platform decried “abuse” of the state secrets privilege, which Bush used to swat away suits related to the wiretapping program.

But on Friday, that new department sought to have the case dismissed by relying, in part, on a broad reading of a legal principle oft invoked by the Bush department, that the federal government could essentially stop legal proceedings by claiming that any litigation of the case would reveal state secrets.

This is a big deal, but so far the story has received little light outside of generally liberal leaning portions of the media.

Salon’s Glenn Greenwald almost certainly deserves sole credit for advancing the story thus far, and, it should be said, for pointing out that in addition to the states secrets claim, the Obama administration advanced what he and the EFF’s lawyer in the case see as a totally novel claim. In Greenwald’s words:

…the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and — even if what they’re doing is blatantly illegal and they know it’s illegal — you are barred from suing them unless they “willfully disclose” to the public what they have learned.

That claim—combined with the fact that this was the first time the Obama administration advanced a broad assertion of the state secrets privilege on their own, rather than agreeing to defend such an assertion held over from Bush—would suggest that the filing was worthy of more attention than it received from traditional sources.

On Tuesday, Keith Olbermann’s Countdown did a segment on the filing that seemed to draw heavily on Greenwald’s analysis, and on Wednesday he hosted Kevin Bankston, the EFF’s counsel on the case.

Until today, the only national straight-reporting outlet to breathe a word of the story was CBS. Katie Couric, in an exclusive interview with Attorney General Holder, asked Holder several questions about his department’s plans for applying state secrets claims going forward, and for reviewing past applications made by Bush administration lawyers. But while that full exchange is available online as part of the interview’s transcript, the broadcast version doesn’t quote a word of Holder’s answers on the topic, and Couric’s narration only glancingly refers to the general complication of trying “sensitive” cases in “open court.” Wednesday’s seven-minute Evening News segment made no mention of the administration’s filing or even of the phrase “state secrets.”

In the full interview, where Couric did press on the matter, she did not ask Holder if he saw a distinction between the privilege’s pre-Bush traditional application, where it was usually used to bar or place for in camera review specific pieces of evidence that the government claimed would harm national security, as opposed to the broader application now evoked by both Bush and Obama, last Friday and in other cases, where, if the courts agree, would stop all litigation on the subject at hand. Nor did she ask about the “willful disclosure” claim.

Outside of Couric, coverage came from the San Francisco Chronicle (where the EFF is based, where the suit is being litigated, and where a telecom technician has testified that equipment enabling the program was housed), and in a 140-word squib in the New York Post.

Notably absent was any mention from The New York Times, not only as the paper of record, but as the paper that, from December 16, 2005, the day it published James Risen and Eric Lichtblau’s long delayed article exposing the warrantless wiretapping program at issue in the Jewel case, has widely covered the story and its constitutional fallout.

“If the criticism is that we missed that particular filing, I’ll take that hit,” Washington bureau chief Dean Baquet told CJR. “I’m not sure why… my gut is this one just sort of slipped through.”

“I’m aware that there has been some criticism that baffles me a little bit, that the Times has not reported the criticism that the Obama administration has not been as aggressive on some national security issues as some critics wanted. I would argue pretty strenuously that we have covered that as aggressively if not more aggressively than anybody else,” said Baquet. “That’s why I’m not completely thrown or upset if we did in fact miss that filing.”

Today, ABC’s Jake Tapper chimed in with a blog post that hit the right points, which, while a step towards prominence, certainly isn’t the same as a World News segment.

But it is an indication that, as Greg Sargent, of the Washington Post-owned Plum Line put it this morning, that “This story is getting more and more attention … and will be one to watch.”

It does seem seems like the story—with Talking Points Memo, this morning, hosting a banner headline linking to five takes on the filing—may finally be about to go big.

If that happens, it won’t, of course, be because the substance of the filing changed in the last week. It will be because condemnations of the argument began to trickle in from the ideological media, and started to be voiced by elected officials—including Speaker Nancy Pelosi, who under Olbermann’s prodding on Thursday, seemed to delicately agree with Olbermann’s critique, saying that “it shouldn’t be that way … the position of the Bush administration was so egregious … we can never have a repetition of what was done under the Bush administration, or a continuation.”

That growing debate will certainly be worth covering.

But so were the administration’s quiet arguments in court.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.