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Ruling Against Bush Wiretaps Also Slaps Down Obama's Executive Overreach

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Wednesday's landmark court ruling that the Bush administration's warrantless surveillance program was flatly illegal is, unfortunately, not only of historical significance.

The program, after all, continues to this day, in a somewhat modified but still arguably unconstitutional manner -- and hasn't always stayed even within those parameters.

But even more importantly, the ruling by U.S. District Court Judge Vaughn R. Walker angrily rejected the Obama administration's attempts to get the case dismissed on the basis of a "state secrets" privilege. That assertion was first made by Bush administration lawyers, but was enthusiastically re-asserted by President Obama's Justice Department.

For that reason, the ruling should serve as a wake-up call to those who thought that the days of executive overreach were behind us -- and as a red alert to all who care about the separation of powers.

The state secrets privilege comes into play when the government asserts to a judge that letting a particular case go forward would inevitably result in the disclosure of information that would compromise national security.

But the privilege, which was established by a 1953 Supreme Court case, is premised on a lie -- literally. That 1953 case involved the widows of three civilian engineers who died in a military airplane crash and sued the government for negligence. The government refused to turn over records, citing national security. But some 50 years later, when the records in question were made public, there were no national security secrets in them, just embarrassing information establishing the government's negligence. (More about the case here.)

Since then, the way the state secrets privilege has typically worked is that when the government refuses to publicly disclose a specific item of information, it explains why to the judge.

But in this case, the judge was told to dismiss an entire case because the government didn't want to answer any questions at all.

This time, at least, the judge refused.

"The government always wants the judges to give utmost deference to the claim or assertion of a state secrets privilege," said Louis Fischer, a specialist in constitutional law at the Library of Congress. "And Judge Walker obviously decided that standard was not appropriate. He did not defer.

"Judicial independence was asserted here in the face of a strong position taken by both the Bush administration and the Obama administration," Fischer told HuffPost. "The judge said 'I'm from an independent branch and I can make my own judgment.'"

Many observers were surprised when Justice Department lawyers on the case continued to make the same arguments after Obama became president.

And Obama himself last April described a much more modest role for the state secrets privilege than his own lawyers had been arguing.

But they continued to argue them. And in November, the Justice Department announced a new policy that requires more review within the department -- but still no review by anyone outside the executive branch.

The government position, said Ben Wizner, a lawyer for the American Civil Liberties Union, is that "these cases have to be dismissed before they even begin, essentially immunizing the conduct at issue from any judicial review."

Top Democratic lawmakers in both the House and the Senate have introduced legislation that would require the government, when it asserts the privilege, to provide the so-called secret evidence to a judge, to render a decision about whether national security is indeed at stake.

In the case resolved on Wednesday, lawyers for the now-defunct Al-Haramain Islamic Foundation sued the government for putting the group under surveillance without seeking a warrant, a violation of the 1978 Foreign Intelligence Surveillance Act, or FISA. The group happened to find out about the surveillance because of a document accidentally delivered to foundation lawyers by the government itself.

Then the government said they couldn't talk about it. Walker summed up the government's argument this way: "Under defendants' theory, executive branch officials may treat FISA as optional and freely employ the [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority."

The government's arguments, he wrote, involved "an impressive display of argumentative acrobatics."

"The Al-Haramain case I think is really significant for the following reason," said Ben Wizner, a lawyer for the American Civil Liberties Union. "The judge gave the government every opportunity to litigate that case without revealing state secrets. The judge was willing to have in camera proceedings, closed to the public. The judge arranged for security clearances for Al-Haramain's lawyers. There was no real danger that state secrets would emerge with all those procedures. But the administration still refused to play ball. And the court said 'Fine, you lose.'"

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The state secrets privilege is still an issue in two other cases, Mohammed v. Jeppesen Dataplan, in which five victims of "extraordinary rendition" say a Boeing subsidiary participated in their delivery to countries that tortured them; and Jewel vs. NSA, in which the Electronic Frontier Foundation is suing the government on behalf of AT&T customers.

And you know what's still a mystery? The answer to these questions I posed last April: What is motivating Obama's lawyers here? What exactly trumped his promises of transparency and the restoration of the rule of law? It's got to be something big. Is this about not wanting to give up executive power, now that they have it? Is it about protecting Bush-era secrets? Are they terrified of rebellion in the CIA or NSA? Are Justice Department lawyers still somehow under the influence of the old regime?

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Dan Froomkin is senior Washington correspondent for the Huffington Post. You can send him an e-mail, bookmark his page; subscribe to RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

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