Unitary Executive Theory Makes A Comeback

Marcy Wheeler and Glenn Greenwald say basically all that needs to be said about the Obama Administration's shameful efforts to block a ruling on warrantless wiretapping in the Al Haramain case. It's not only that this White House is running interference for the last White House, it's the basic copying of the same dangerous theories of unitary executive power that should have everyone worried.

The brief filed by Obama on Friday afternoon (.pdf) has to be read to believed. It is literally arguing that no court has the power to order that classified documents be used in a judicial proceeding; instead, it is the President -- and the President alone -- who possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding. From page 5 of the Obama Brief, filed after its loss on Friday:

"In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the
Government to grant counsel access to classified information when the Executive Branch has denied them such access."

That's about as clear as it gets. There is only one branch with the power to decide if these documents can be used in this Article III court proceeding: The Executive. What the President decides is final. His decision is unreviewable. It's beyond the reach of the law. No court has the authority to second-guess it or to direct the President to comply with a disclosure order. That's the mentality -- and even the language -- drawn directly from the earliest Yoo Memorandum that created the theoretical foundation for what would be the omnipotent presidency.

Just for a little background on the Al Haramain case - the Islamic charity, in an accidental court filing from the Bush Justice Department, discovered they had been spied upon illegally by the government, without a warrant. Their certainty is due to the transcript of the eavesdropped conversation that the government gave them. Since that time, both the Obama and Bush Administrations have ordered that the document, and therefore the evidence for illegal conduct, is classified and cannot be admitted into court. Despite several rulings to the contrary, this President - like the one before him - is claiming that only the executive can decide what may be done with classified information, with the potential being that any President can just classify whatever compromising information exists about his or her activities and shield it from the view of the Congress, the courts, and the people. It is an expansive and un-American view of the Constitution, used in this case to service a massive cover-up.

And this effort to use the state secrets privilege to this degree has been thoroughly rejected in this case. But the government continues to appeal. Aside from admitting that Bush's DoJ lied to the presiding judge in an earlier filing, there is nothing redeemable about Obama's conduct.

There is simply so much that Obama's team has had to overturn from the Bush regime, they're probably getting heartburn from all of the decisions. Yet while, in isolated respects, they've done a decent job, it cannot excuse this conduct. I don't know whether it's foreknowledge of the extent of the lawbreaking, or pressure from the telecoms to save their immunity (which could absolutely be threatened by this ruling, as there's a pending case with the same judge, Vaughn Walker) or what, but Washington is united in really, really not wanting the truth on warrantless wiretapping to come to light. It is despicable that this has become so vital that Obama, a constitutional law professor, would adopt the same unitary executive theory than he actually swore an oath to reject.