In the Mohamed v. Jeppesen extraordinary rendition case, the Obama administration reiterated the Bush administration argument that the case should be dismissed to preserve "states secrets." Likewise, in the Al-Haramain wiretapping case, Obama's DOJ used the arguments of the Bush administration to argue, again, that state secrets should prevent the Al-Haramain case -- in which the only secret isn't a secret because it was inadvertently shared with plaintiff's attorneys -- from moving forward.
Late Friday, the Obama DOJ actually went the Bush administration one argument further, in a third case. In Jewel v. NSA, the Electronic Frontier Foundation is "suing the National Security Agency (NSA) and other government agencies on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records." The Obama administration filed its first response [pdf] to the suit Friday, demanding dismissal of the entire suit.
Just a reminder, as pointed out by Glenn; one of the rationales provided by all of those Senators who supported the FISAAA that granted immunity to the telcos was the the avenue of suing the government was still open. Jello Jay wrote: "If administration officials abused their power or improperly violated the privacy of innocent people, they must be held accountable. That is exactly why we rejected the White House's year-long push for blanket immunity covering government officials."
Needless for me to say, what's good for the goose (Bush) is NOT good for the gander (Obama). I expected more and much better from a Democratic president than this, and expect now that either a Democratic Congress or the Supreme Court will limit these illegal powers claimed by the most recent head of the executive branch.
It's difficult to read the administration's brief in any other way than a reinforcement -- even an inflation of -- the unitary executive, or to attribute it to Bush holdovers. This is first of the cases in which the DOJ attorneys aren't carrying over arguments from the previous administration -- they are initiating this case. And it appears that the promises of last summer and fall when FISAAA was being argued were pretty damned empty. As EFF points out:
"President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," said EFF Senior Staff Attorney Kevin Bankston. "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."