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.

Don't hold your breath on Pelosi's "delicate disagreement". She was a member of the gang of eight, doncha remember. Along with Jane Harmon, Tom Daschle and Jay Rockefeller, they were fully briefed on domestic spying (let's call it what it is), and she signed off on it without so much as a peep.
It appears that Greenwald is now a key newsmaker. He is able to leverage the work of the civil rights advocates into breaking news stories. Couric would do well to hang onto his coattails and amplify what he analyzes and reports. The war machine GE/NBC and the mafia mouse/ABC will never ever bite the government hands that feed them, so CBS, lame as it is, may be the only network to even nibble.
But the people are now directly feeling the pain from the ongoing Constitutional assaults and being offered cake crumbs for their increasing hunger. The talking head who exploits this and exposes just how they are being used and abused will get an enviable market share.
#1 Posted by tribulation periwinkle, CJR on Sat 11 Apr 2009 at 11:35 AM
Could it be that the Obama/Holder DOJ is performing an elaborate political Kung Fu move? Rather than create a standoff with the conservative Supreme Court by trying to undo Bush era constitutional abuses by Presidential order alone, the Congress is being prodded into action that is both inevitable, and necessary. They took an active part in building this mess, they should have to legislate the full restoration of the constitution, and in that process take responsibility for their past actions. Maybe just wishful thinking here, but I still trust President Hopey rather than our Congressional leaders.
#2 Posted by Articulate later, CJR on Sat 11 Apr 2009 at 12:35 PM
Ah yes, the Secret Master Plan theory.
#3 Posted by Shii, CJR on Sat 11 Apr 2009 at 12:37 PM
Maybe Obama is saying to Congress, "make me do it". That way no future POTUS could do it either.
#4 Posted by RJWest, CJR on Sat 11 Apr 2009 at 12:55 PM
Senator Obama let us all know just what his word meant when he promised to oppose the FISA revisions and telecom immunity before doing the exact opposite and voting for them.
It isn't hope, but foolishness to trust Obama now that he is President.
#5 Posted by Dr Rick, CJR on Sat 11 Apr 2009 at 01:17 PM
No, the Obama administration doesn't have some good secret plan to force the issue to be resolved by the Supreme Court or Congress. It WANTS these powers, for whatever reason (make that excuse).
If they wanted that, they could simply say so. Nothing is harmed by saying so, if that is their position.
No, even though i voted for him, and given the choice at the time, that was the right choice, I never personally thought Obama was especially principled, with his many tone-deaf or worse actions. His bringing in that "recovered" gay man, his disingenuous explanations for FISA, his continual appointment of the very people who helped bring on the financial crisis, his desire to bring in Tom Daschle, one of the most compromised democrats in the country, and virtually every judicial action has been to continue or expand on the powers Bush/Cheney illegally claimed.
At this point, one should give no benefit of the doubt to Obama, and he needs to earn it all over again. He is not trustworthy, and needs some serious pushback.
--Ron
#6 Posted by Ron Robertson, CJR on Sat 11 Apr 2009 at 01:18 PM
Once again the New York Times' Washington bureau chief Dean Bacquet has been oddly "baffled" by criticisms of the government, and chose to suppress the criticism instead of publishing it. Bacquet has been identified as the editor at the Los Angeles Times (he was later hired by the NY Times) who in Feb. 2006 decided not to publish my evidence of AT&T's illegal collaboration with the NSA, on the excuse that "we could not figure out what was going on" from the documents I gave them. Apparently he never heard of consulting experts. Instead he consulted with then-Director Of National Intelligence John Negroponte and NSA director General Hayden, and then squashed the story. See the Brian Ross/ABC News report on this at http://blogs.abcnews.com/theblotter/2007/03/whistleblower_h.html I had to fight to get the media to report my evidence because, obviously, the government wanted it suppressed.
#7 Posted by Mark Klein, CJR on Sat 11 Apr 2009 at 03:46 PM
OK, there is a certain extent to which I still trust Obama on this issue, for reasons I won't go into. But the larger point is that whether the (a) president is trustworthy or not needs to be rendered completely irrelevant. What we need to be fighting for is a legal structure that, as nearly as possible, makes it utterly impossible for the president to violate our rights, break laws, and otherwise do things s/he shouldn't be doing. The personal morality of the sitting President is utterly beside the point, and a society that doesn't torture people solely because its current commander in chief happens to think it's a bad idea is just as lawless as one that does torture people on the chief's say-so.
Besides, if Obama really wanted Congress to pass the State Secrets Protection Act, he wouldn't need to manipulate them into it by pretending to be totalitarian--he could just ask the leadership to do it.
#8 Posted by Feste, CJR on Sat 11 Apr 2009 at 07:14 PM
A few people warned us during the 2000 election that Bush had to be judged on his deeds, not his words. How right they were. Thus, I'll trust Obama on his deeds, not his words, however well crafted they are.
Thus far, his deeds betray everything he has said about civil liberties and the conduct of the so-called "War on Terror".
Does he really think he will be a two terms President by acting like that?
#9 Posted by Frankie, CJR on Sat 11 Apr 2009 at 10:21 PM
"Ah yes, the Secret Master Plan theory," wrote somebody.
That's right. A person would have to be a real screwball nutjob to think bankers plan to get the public indebted to them, and that bankers then plan to ask governments to shore up the institutions from which governments borrow their operating funds.
How could bankers have known people might actually respond to all of those telemarketers phone calls and junk-mail pre-approved credit applications? They were just trying to make an honest service available to a needy public. It takes a real screwball to believe anything else, Right?
#10 Posted by Johnie, CJR on Sun 12 Apr 2009 at 02:56 PM
buzzflash.com has also been following this betrayal of a campaign promise closely. One of our analyses is "Obama DOJ Invokes State-Secrets Privilege and Patriot Act To Justify Continued Bush Warrantless Wiretaps" athttp://buzzflash.com/articles/analysis/705
#11 Posted by mark karlin, CJR on Sun 12 Apr 2009 at 04:23 PM
Senator Obama let us all know just what his word meant when he promised to oppose the FISA revisions and telecom immunity before doing the exact opposite and voting for them.
It isn't hope, but foolishness to trust Obama now that he is President.
Posted by Dr Rick on Sat 11 Apr 2009 at 01:17 PM
as the kids usta say: Werd!
It is well to remember that NO PRESIDENT except washington has EVER ceded back to the Lege/People powers they arrogated to meet some current emergency.
"thePrez" is no Washington...
#12 Posted by Woody, CJR on Mon 13 Apr 2009 at 03:30 PM
on the prex obama page linked: they note that bush was too far out there on govt secrecy.
but the obama page does NOT say that an obama administration will be or do anything different in realtion to that. side step 2-3-4.
#13 Posted by utw0, CJR on Tue 14 Apr 2009 at 09:38 AM
AXJ has just published this article around the world. www.axjus.com
#14 Posted by AXJ, CJR on Sat 3 Oct 2009 at 02:00 PM