Impressed, and Disappointed

Earlier today, I wrote about how impressed I am with Barack Obama as president, despite the fact that he has disappointed me in some areas.

Well, this is one of those areas in which his actions not only disappoint and anger me, but mystify me as well:

President Barack Obama invoked “state secrets” to prevent a court from reviewing the legality of the National Security Agency’s warantless wiretapping program, moving late Friday to have a lawsuit that challenged the program dismissed.

The move — which holds that information surrounding the massive eavesdropping program should be kept from the public because of its sensitivity — follows an earlier decision in March to block handover of documents relating to the Bush Administration’s decision to spy on a charity. The arguments also mirror the Bush Administration’s efforts to dismiss an earlier suit against AT&T.

The Friday brief involves a lawsuit filed by the civil liberties group Electronic Frontier Foundation, which is suing the NSA for the wiretapping program. The agency monitored the telephone calls and emails of thousands of people within the United States without a court’s approval in an effort to thwart terrorist attacks.

In attempting to block a San Fransisco [sic] court from reviewing documents relating to the NSA program, the Obama Administration is also protecting other individuals named as defendants in the suit: Vice President Dick Cheney, former Cheney chief of staff David Addington and former Bush Attorney General Alberto Gonzales. The Friday brief responded to the government agencies being sued; the individual defendants have asked for more time to prepare their response.

Obama’s decision should not surprise anyone, says Steve Hynd:

It’s entirely consistent with Obama’s previous positions – he voted for the 2008 amendment to the FISA Act that expanded wiretapping and handed the telecomms giants blanket immunity. Like so much else this administration has done already, that doesn’t mean it’s right. Although I think just about everyone has given up on Obama rolling back Bush’s excesses and all the hasty slime that goes with the notion of the Imperial Presidency.

In related news, the American Constitution Society’s blog links to reports by Scott Horton and Jack Balkin about Senate Republicans making the nominations of Dawn Johnsen and Harold Koh (both strong opponents of torture) contingent upon the Obama administration agreeing not to release those three torture memos that Eric Holder recommended for declassification following a Freedom of Information Act request by the ACLU.

Scott writes:

Senate Republicans are now privately threatening to derail the confirmation of key Obama administration nominees for top legal positions by linking the votes to suppressing critical torture memos from the Bush era. A reliable Justice Department source advises me that Senate Republicans are planning to “go nuclear” over the nominations of Dawn Johnsen as chief of the Office of Legal Counsel in the Department of Justice and Yale Law School Dean Harold Koh as State Department legal counsel if the torture documents are made public. The source says these threats are the principal reason for the Obama administration’s abrupt pullback last week from a commitment to release some of the documents. A Republican Senate source confirms the strategy. It now appears that Republicans are seeking an Obama commitment to safeguard the Bush administration’s darkest secrets in exchange for letting these nominations go forward.

To say Senate Republicans are being presumptuous is to seriously understate the implications of what they are doing which, as Hilzoy writes, is truly unprecedented:

Besides the ugliness of the attacks, what the Republicans are doing is really unprecedented. First, the President has traditionally been given deference in the choice of his advisors. If some President wants to have someone in his cabinet, the presumption is that he ought to be able to do so, absent illegality or some sort of manifest incompetence. For the Republican Senators to hold these appointees up not for those reasons, but because they disagree with their policies, is just wrong; if this happened every time a new administration came into office, the opposition party would filibuster half the nominations and no one would never govern at all.

Second, what the Republicans are trying to do is to dictate to the President a matter that is purely his prerogative: deciding whether or not to unclassify documents. This is insane: it’s as though Obama threatened to withhold funding for the Senate unless Mitch McConnell fired some staffer he didn’t like. …

And the combination — holding appointments hostage while trashing people’s reputations in order to keep Obama from making a decision he plainly has the right to make — is unconscionable.

I am not, in general, a big fan of saying: Republicans: you lost. Get over it. But in this case, I’m going to make an exception. The Republicans do not seem to be willing to allow the President to do things that are plainly his prerogative: appointing the reasonable, qualified, law-abiding people of his choice, deciding which documents should be declassified, and so forth. …

Having said this (or having quoted Hilzoy saying it — and of course what she says is eminently reasonable and absolutely correct), I think too few commentators on the left are holding Pres. Obama to as strict account as he should be held in this matter. Republicans are Republicans and they are contemptible. But if Obama gives in on this, and withholds the torture memos in exchange for Senate Republicans letting his nominees go through, that is unconscionable.

Glenn Greenwald is one of the few bloggers who is consistently firm on this point:

It’s unclear whether the claims of Horton’s source [that GOP obstructionism in the Senate is why the release of the torture memos was delayed] are true.  It sounds more like a responsibility-shifting excuse than anything else — a way of blaming Republicans rather than Obama officials for the failure to disclose these memos — but it doesn’t matter in the slightest if the claims are true.  There is absolutely no justification whatsoever to continue to conceal these memos, and the fact that the GOP will stomp its feet and obstruct nominees doesn’t come close to constituting an excuse for ongoing concealment.

I don’t personally have any real objection to the Obama administration’s desire to have a few additional weeks to try to figure out how to manage these internal controversies and political storms over the memos’ release.  Though frustrating, short delays of this type are tolerable, even reasonable.  But ultimately (and sooner rather than later), full disclosure of these documents  — meaning with nothing other than the most minimal redactions to protect sources and identities of cooperating foreign agencies — is absolutely necessary.   There is no excuse for any other course of action, and a failure of full disclosure here would almost certainly be the most egregious act taken thus far by the Obama administration (and there have already been several such acts) to help keep concealed compelling evidence of Bush crimes.

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