Not Completely Transparent

The Obama administration will not go down in history as a force of pure, unadulterated shining goodness, as it turns out. In fact, the Department of Justice’s state secret position (pdf) with respect to the NSA wiretapping cases is down right disappointing. (Link is to the government’s Motion to Dismiss in the Jewel v. NSA case.)

Marc Ambinder at the Atlantic has an entry entitled “Shut Up: It’s Still a Secret” (h/t Reverent & Free) commenting on the government’s assertion of the executive branch’s common law prerogative to protect classified information which would should shut down any litigation against the National Security Agency for its arguably illegal warrantless surveillance program. The Electronic Frontier Foundation is currently running a hyperbolic graphic saying “Obama Position on Illegal Spying: Worse Than Bush.” If you click through the link, the statement is modified somewhat to “In Warrantless Wiretapping Case, Obama DOJ’s Arguments are Worse than Bush’s” (h/t Mike Kole).

Ambinder suggests that the Obama administration is trying to figure out how to disengage from the Bush-created thicket without weakening the executive branch’s prerogatives for more legitimate undertaking. I hope this is the case. At the end of the day, however, it’s basically the administration saying “trust us” which we are reluctant to do when we potentially have (or had) government employed spooks indiscriminately sucking up telephone traffic from good guys and bad guys alike. The fundamental problem with a “trust us” argument is that, even if this group of people have their heart in the right place, the next group may not. This brings to mind Federalist #51 on the subject of checks and balances:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

(Emphasis added) The state secrets argument creates a situation where there is no effective check or balance.

Nevertheless, for the time being, I can’t embrace the “Obama is as bad as/worse than Bush” argument. Covering up the past administration’s transgressions isn’t good; but it’s not “as bad as” committing the transgressions in the first place. I have a hard time believing that the Obama administration will be as indifferent to Constitutional limitations as the Bush administration was. Take, for example, Obama’s decision to appoint Dawn Johnsen to the Office of Legal Counsel. She is a Constitutional scholar who has worked for, among others, the ACLU and has characterized (at least in the case of the Bush administration) broad readings of executive power as “outlandish.” Whether she would offer opinions that limit executive power once she was working for the Obama OLC remains to be seen, but appointing someone who has taken that sort of stance in the past suggests that President Obama does not view the Constitution as a mere piece of paper to be gotten around.