By now we're all familiar with the paradox: we know the Bush administration illegally wiretapped Americans without a warrant, but there's no possibility of legal recourse for those whose rights were violated because the government insists the details of the program are a state secret. What is less familiar, but is becoming increasingly so, is that the Obama administration has used the same arguments as its predecessors to shield illegal behavior from judicial review.
The Obama administration has lost its attempt to block details of the Bush administration's warrantless wiretapping program from coming out in the Al-Haramain case. Two lawyers for a now-defunct Saudi charity insist the Bush administration spied on them without a warrant, based on a classified document that was accidentally leaked to them. The judge in the case has allowed the document to be used as evidence. A federal appeals court rejected the Obama administration's request for an emergency stay in the case.
Still, the Obama administration filed papers insisting that the court "refrain from further actions to provide plaintiffs with access to classified information," indicating that they will continue to push for keeping the details of the wiretapping secret. This is the second time the Obama administration has attempted to use the state secrets doctrine to block a civil suit in its entirety, the first being the Mohamed v. Jeppsen case, in which the plaintiffs were suing a Boeing subsidiary for aiding in their rendition by the CIA to foreign countries where they were tortured.
It's not clear to me why the Obama administration is pursuing this route, they're well aware that the Bush administration's behavior was illegal. During his confirmation hearing, Eric Holder agreed with Russ Feingold that he did not believe the President had "inherent power" to eavesdrop on anyone without a warrant, just because he/she feels like it.
-- A. Serwer
