As I detailed over the weekend, the Obama administration -- in the case brought by two American lawyers and their charity-client claiming that their conversations were illegally intercepted by the Bush administration -- has announced that it intends to try to appeal, yet again, in order to prevent the court from hearing the lawsuit. On Friday, the Ninth Circuit Court of Appeals rejected Obama's request to stay the District Judge's Order, which had held that it will review a classified document that the plaintiffs claim proves they were subjected to the illegal eavesdropping (thus conferring standing on the plaintiffs to challenge the legality of Bush's NSA program), and also ordered the Obama administration to provide security clearances to the plaintiffs' lawyers so that they could review the document as well. The Obama DOJ immediately announced they intend to try to
appeal again -- the third time, since Obama's Inauguration, that the Obama DOJ
will try to argue before a court that the case should not heard at all.
The Obama Administration is arguing that only the Executive Branch should have the (lone) power to decide whether classified documents can be used in a court proceeding. They are also arguing that once the President makes a decision on this, that courts do not have the authority to challenge this decision. As Greenwald points out, under this argument, the following situation could have the potential to happen:
- The President breaks the law
- The President decides that the information about the lawbreaking is classified
- The President orders that the classified information cannot be used in court
- This decision can not be reviewed by courts
I am in agreement that this is straight out of the Bush Administration's "Executive Power" playbook. From Greenwald:
As Marcy Wheeler documents in detail, the Obama DOJ is now spouting the Cheney/Addington view of government in its purest and most radical expression. Citing lengthy excepts from the Obama DOJ's brief filed on Friday following its loss in the appeals court -- a brief that could easily have been written by John Yoo or David Addington in its distinctly un-American and anti-constitutional theories purporting to vest unchallengeable, unreviewable power in the President...