Kevin Bankston of the Electronic Frontier Foundation, a lawyer for the customers, said Monday the filing was disappointing in light of the Obama presidential campaign's "unceasing criticism of Bush-era secrecy and promise for more transparency."
Not only is Obama liking those powers, but according to Glenn Greenwald, a member of the far far left, the Obama administration is making "New and worse secrecy and immunity claims from the Obama DOJ."
But late 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.
Needless to say, Greenwald is quite upset (massive understatement).
It is hard to overstate how extremist is the "soverign immunity" argument which the Obama DOJ invented here in order to get rid of this lawsuit. I confirmed with both ACLU and EFF lawyers involved in numerous prior surveillance cases with the Bush administration that the Bush DOJ had never previously argued in any context that the Patriot Act bars all causes of action for any illegal surveillance in the absence of "willful disclosure." This is a brand new, extraordinarily broad claim of government immunity made for the first time ever by the Obama DOJ -- all in service of blocking EFF's lawsuit against Bush officials for illegal spying
The Obama Administration's full motion to dismiss can be read here (PDF).
The Raw Story highlights The Electronic Frontier Foundation's response to this, via their press release:
"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," said EFF Senior Staff Attorney Kevin Bankston in the release. "But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."
Cindy Cohn, legal director of EFF has the quote of the day here when she states "In our case we have no reason to believe that the warrantless wiretapping has ended, so at some point we have to call it Obama's warrantless wiretapping."
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