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Bushier than Bush?

For years peace loving individuals have been rightfully upset about President Bush’s abuse of our Constitution in response to the War on Terror.  To date, President Obama has changed the name of this action, and little else.  Except for the fact that he has attempted to acquire even more power in defense of these actions than even President Bush dared push for.  Is this because President Obama is more creative or is it more of a natural progression to fascism that our duopoly is driving us towards?


Last year our Democratic controlled congress legalized the wiretapping that the Bush administration was doing and absolved all of the telecomm companies of any wrongdoing. Originally, then Senator Obama stated that he would filibuster any bill that gave the telecom companies immunity. He later backed off of this threat. However, the original perpetrators, the Bush administration officials who started the program in secret without congressional authority, would be held accountable, we were told.

Over the past year, the Senate intelligence committee has examined this issue, along with the need to bring the warrantless surveillance program within the law. We closely studied the facts, the documents and the alternatives to liability for the companies. Ultimately, we concluded that if we subject companies to lawsuits when doing so is patently unfair, we will forfeit industry as a crucial tool in our national defense. So we crafted legislation to do two important things: modernize the Foreign Intelligence Surveillance Act so the program is monitored by the courts with proper checks and balances, and keep the focus over legality where it belongs — on the government.

Second, lawsuits against the government can go forward. There is little doubt that the government was operating in, at best, a legal gray area. If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House’s year-long push for blanket immunity covering government officials.

The EFF took them at their word and sued. They understood that the existing lame-duck Bush administration would stall, so they waited, patiently, for the incoming Obama administration to help their cause. They were very very surprised. Not only did the Obama DOJ use the same exact arguments as the Bush administration did on keeping vital documentation out of the lawsuit, they invented newer and even more outrageous claims that heaped even more power onto the executive branch that even Bush dared not attempt. The filing on April 3, 2009 says it all.

As Glenn Greenwald points out:

But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the “state secrets” privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new “sovereign immunity” claim of breathtaking scope — never before advanced even by the Bush administration — that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is “willful disclosure” of the illegally intercepted communications.

In other words, beyond even the outrageously broad “state secrets” privilege invented by the Bush administration and now embraced fully by the Obama administration, 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.

This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used — not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance. Everything for which Bush critics excoriated the Bush DOJ — using an absurdly broad rendition of “state secrets” to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity — are now things the Obama DOJ has left no doubt it intends to embrace itself.

It is hard to overstate how extremist is the “soverign immunity” argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of “willful disclosure.” This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ — all in service of blocking EFF’s lawsuit against Bush officials for illegal spying. As EFF’s Kevin Bankston put it:

This is the first time [the DOJ] claimed sovereign immunity against Wiretap Act and Stored Communications Act claims. In other words, the administration is arguing that the U.S. can never be sued for spying that violates federal surveillance statutes, whether FISA, the Wiretap Act or the SCA.

So not only is Obama making the exact same arguments that his supporters excoriated Bush for, and has done several times already in other lawsuits, but he is taking it to another level. However, it is not the only time he has done a one-up on Bush in his short administration.

For years the left has been besides themselves with the number of signing statements that Bush signed while in office. They were numerous and many of them skirted giving the president more power than was constitutionally provided for. That is why some are a little confused by President Obama’s first signing statement that gave the executive branch a de facto line-item veto, something that is clearly unconstitutional. According to Talk Left:

President Obama’s signing statement and declared intention to not follow certain provisions of the Omnibus Spending bill are a de facto line item veto. I would argue that the very fact that instead of relying on clear Supreme Court precedent, as the President does in the first part of his signing statement, and instead of being a declaration of what the law may mean in a hypothetical scenario, as many generalized assertions in signing statements are, the specificity of and the stated and express declaration to NOT abide by the law make this signing statement, in this procedural aspect, as bad or worse than President Bush’s signing statements.

When signing statements are merely blather with no practical or promised effect, then I doubt there is a real constitutional question. But when a signing statement, as here, instructs a Cabinet officer, in this case, the Treasury Secretary, to disobey a law, then we have a problem.

Power. That has been an increasing theme with this administration. The President seems to want to aquire more power, not just for himself but his cabinet members as well. Not even for just these two areas but wanting to control access to the internet, increase the use of executive privilege,give Treasury Secretary the power to take over businesses, attempt to politicize the census, etc.

The question is, will the people keep giving in to these abuses of power or will the time come soon where the honeymoon ends and people start demanding that the executive branch be kept in check. Will the congress end its love affair with their president and start putting more teeth into their interactions with the executive branch? And if so, how much damage will be done before this occurs?

Some on the left are speaking out. Some are putting country above party. I find it unfortunate that there are so few…

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