HENTOFF: Obama shrugs off concerns

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By Nat Hentoff

During his presidential campaign, a solemn pledge by Barack Obama that almost made me vote for him (but I'm pro-life, and he's a pro-choice extremist) was that his administration would be the most open and transparent in our history, in contrast to the deeply, darkly secret George W. Bush-Dick Cheney administration. But, as with some of his other broken promises to restore the Constitution, I increasingly have less hope for a reason to believe in the Obama presidency.

For a glaring example, with regard to the pervasive secrecy of his predecessors, President Obama has stunningly not only continued to invoke state secrets to order judges to close down lawsuits, but has gone further than Mr. Bush by claiming total government immunity from litigation by citizens protesting illegal spying on our communications by the National Security Agency.

On April 3, Mr. Obama's Justice Department filed an answer to a federal lawsuit against warrantless wiretapping of Americans brought by the San Francisco-based Electronic Frontier Foundation, which has been the lead litigator concerning lawless Bush, and now Obama, violations of our privacy.

In Jewel v. NSA, five plaintiffs charge that their telecommunications carrier, AT&T, gave the NSA - with its vast surveillance technology - information about their communications. (There also are other lawsuits by indignant Americans in state courts against telecoms cooperating with NSA.)

Attorney General Eric H. Holder Jr. - who certainly didn't act on his own initiative - began Mr. Obama's response by insisting that just allowing the case to continue "would cause exceptionally grave harm to national security."

However, Mr. Obama, during his presidential campaign, vigorously complained that the Bush administration "invoked a legal tool known as the 'state secrets' privilege more than any other administration to get cases thrown out of civil court."

Now the Obama administration "has for the first time claimed sovereign immunity against the privacy-protecting Wiretap Act and the Stored Communications Act," says Kevin Bankston of the Electronic Frontier Foundation. "In other words, this administration is arguing that the U.S. can never be sued for spying that violated federal surveillance statutes, whether the Foreign Intelligence Surveillance Act, the Wiretap Act or the Stored Communications Act."

Glenn Greenwald, a former constitutional lawyer, has become a persistently valuable analyst of the insatiable unconstitutional overreaching of the executive branch for the past eight years - and during Mr. Obama's first few months. On April 6 in salon.com, Mr. Greenwald confronted this "brand-new 'sovereignty 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" by the government.

What does that mean? We have to prove somehow that the Obama team has "willfully" disclosed information it has lawlessly obtained on us? How can we know that it has? All this dragnet electronic surveillance is secret!

Another startled analyst of this brand-new Obama invention, Marc Ambinder, reminds us on the April 7 Atlantic Web site that "domestic communications are monitored holistically, with computers searching for patterns among the metadata. ... The NSA continues to work with telephone companies; it has enlisted the cooperation of companies that operate major Internet hubs, as a good chunk of foreign Internet traffic flows through routers controlled by American companies."

As James Bamford documents in "The Shadow Factory: The Ultra Secret NSA from 9/11 to the Eavesdropping of America," hundreds of thousands (at least) of our calls are continually monitored and, if patterns indicate, are put into bottomless government databases.

When the Bush administration urged passage of the FISA Amendments Act of 2008, which purportedly (but falsely) guaranteed judicial supervision of dragnet government electronic surveillance, Mr. Obama, then a senator, was so enraged he threatened to filibuster the bill. Then he voted for it, but he pledged to work against the law's immunization of telecom companies from lawsuits for their complicity with the NSA.

Yet during the confirmation hearing to be Mr. Obama's attorney general, Mr. Holder supported this protection of the telecoms from lawsuits. So now Mr. Obama does as well. One of the biggest whoppers of the Bush-Cheney years was Defense Secretary Donald H. Rumsfeld's grim charge that "the worst of the worst" were detained at Guantanamo Bay. Yet in February 2006, a Seton Hall Law School report - using the Defense Department's own records - demonstrated that just 8 percent of Guantanamo Bay prisoners were accused of being al Qaeda combatants.

Mr. Obama's solemn vow that his administration would be the most transparent in our history qualifies him, through his trumping of George Orwell's "1984" - in this and other invocations of absolute government secrecy - for the Donald H. Rumsfeld Obfuscation Prize.

For another example of this "new" Mr. Obama, to be followed up later, we still have CIA renditions of terrorism suspects to other countries - with those countries' assurance that they won't torture the suspects we send.

That's the very same false promise former Secretary of Defense Condoleezza Rice used to intone ritualistically.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press and is a senior fellow at the Cato Institute.