The Cover-Up Is Worse Than The Crime

I think I mentioned it in passing once, but the Obama Administration's reliance on the state secrets privilege to try and throw out warrantless wiretapping lawsuits ought to concern every American. The President and the Justice Department have now implicated themselves in the illegal activity by using these means to cover it up. As Glenn Greenwald says, progressives have almost unanimously condemned Obama for this conduct - including some of his most fervent supporters.

The fact that Keith Olbermann, an intense Obama supporter, spent the first ten minutes of his show attacking Obama for replicating (and, in this instance, actually surpassing) some of the worst Bush/Cheney abuses of executive power and secrecy claims reflects just how extreme is the conduct of the Obama DOJ here. Just as revealingly, the top recommended Kos diary today (voted by the compulsively pro-Obama Kos readership) is one devoted to attacking Obama for his embrace of Bush/Cheney secrecy and immunity doctrines. Also, a front page Daily Kos post yesterday by McJoan vehemently criticizing Obama (and quoting my criticisms at length) sparked near universal condemnation of Obama in the hundreds of comments that followed. Additionally, my post on Monday spawned vehement objections to what Obama is doing in this area from the largest tech/privacy sites, such as Boing Boing and Slashdot.

This is quite encouraging but should not be surprising. As much as anything else, what fueled the extreme hostility towards the Bush/Cheney administration were their imperious and radical efforts to place themselves behind an impenetrable wall of secrecy and above and beyond the rule of law. It would require a virtually pathological level of tribal loyalty and monumental intellectual dishonesty not to object just as vehemently as we watch the Obama DOJ repeatedly invoke these very same theories and, in this instance, actually invent a new one that not even the Bush administration espoused.

Obama has done much to commend him, and yet in several key areas - the banks, Af-Pak policy, and a portion of these civil liberties issues - he has not fulfilled his own rhetoric or offered any substantive change from the Bush Administration. And it's important for a healthy ideological movement to acknowledge that, and I think progressives are passing that test.

As for this specific case, Obama's DoJ is acting in a lawless fashion, to be blunt. They are using the state secrets claim in ways more expansive than Bush's lawyers ever did, to cover for the previous Administration and, in the process, assert executive power to essentially shut down the judicial branch and claims under the law. It is indefensible. What's more, it's not likely to work, as all the relevant case law in this area shows, making it an even more baffling position to take.