[Last] Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. 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.
It basically boils down to the Obama Administration invoking Section 223 of the Patriot Act, which Congress has decided not to sunset. I think the term is "Sovereign Immunity", which basically means that if you don't like what the government is doing, even if the government itself thinks it might be illegal, you cannot sue the government unless it blatantly publicizes its findings.
Obama has walked himself into a corner because there is no terminology left for him vis a vis the War On Terror that he hasn't denigrated. So there's really no consistent term of security in his policy that gives a political explanation for the powers he has reverved for the executive. Not so much as an 'evildoer'.
As I listened to Dan Carlin break this story on his podcast, an image flashed in my eyes. You know that envelope that one president leaves for another? I'm imagining that Bush put in that envelope some wiretap information on a domestic terror cell that was found by pushing the FISA envelope - something so heinous and devastating that Obama could not ignore it and give him no grounds to question the means of intelligence gathering. After all, now Obama knew what Bush knew so what could he do?
My solution to all this remains twofold as I've said. An American equivalent of MI5 whose charter is domestic surveillance in the first place, not some patchwork of broken firewalls between agencies who would heretofore only be breaking their charters by doing such work. Secondly a terrorism circuit court as suggested by Posner. Doing this would allow Congress to sunset the Patriot Act and put more power into the judicial branch which should alleviate the envelope pushing.
Greenwald and a host of others cannot imagine and believe that Obama is actually going further that Bush ever did in asserting the untouchability of the executive. We'll see how seriously they take this matter.
I think I'm going to shoot some barrelfish on this one.