The New Republic's John Judis today has an excellent analysis of the politics behind the stimulus package -- one which applies equally to most other political controversies.  Judis argues that the stimulus package ended up being far inferior to what it could have been and points to this reason why that happened:

But I think the main reason that Obama is having trouble is that there is not a popular left movement that is agitating for him to go well beyond where he would even ideally like to go. Sure, there are leftwing intellectuals like Paul Krugman who are beating the drums for nationalizing the banks and for a $1 trillion-plus stimulus. But I am not referring to intellectuals, but to movements that stir up trouble among voters and get people really angry. Instead, what exists of a popular left is either incapable of action or in Obama's pocket. . . .

A member of one liberal group, Campaign for America's Future, pronounced the stimulus bill "a darn good first step." MoveOn -- as far as I can tell -- has attacked conservative Republicans for opposing the bill, while lamely urging Democrats to back it. Of course, all these groups may have thought the stimulus bill and the bailout were ideal, but I doubt it. I bet they had the same criticisms of these measures that Krugman or The American Prospect's Ezra Klein or my own colleagues had, but they made the mistake that political groups often make:  subordinating their concern about issues to their support for the party and its leading politician.

By extremely stark contrast, Paul Krugman today explains why Republicans are so unified in their opposition to this bill and their willingness to uphold the principles of their supporters:

One might have expected Republicans to act at least slightly chastened in these early days of the Obama administration, given both their drubbing in the last two elections and the economic debacle of the past eight years. But it’s now clear that the party’s commitment to deep voodoo — enforced, in part, by pressure groups that stand ready to run primary challengers against heretics — is as strong as ever.

[As an ancillary matter:  though I agree with Krugman's principal point, I dislike his use of the word "heretics" here. It invokes one of the worst myths in our political discourse:  the idea that there's something wrong, intolerant or "Stalinist" about pressuring or even campaigning against incumbents "from one's own party" who advocate positions that you think are bad and wrong.  That activity happens to be the essence of democracy, and we need more, not less, of it.  If anything is Stalinist, it's the sky-high incumbent re-election rates and the sense of entitlement in our political class that incumbents should not ever face primary challenges even if they support policies which the base of the party reviles.  Why shouldn't GOP voters who love tax cuts and hate government domestic spending, regardless of whether they're right or wrong, demand that their elected representatives support those views (in exactly the same way that Democratic incumbents who supported the Iraq war and/or Bush's lawless surveillance state should have been targeted for defeat)?]

But Krugman's larger point is correct:  Republican groups demand from politicians support for their beliefs.  By contrast, as Judis describes, Democratic groups -- including (perhaps especially) liberal activist groups -- now (with some exceptions) lend their allegiance to the party and its leader regardless of how faithful the party leadership is to their beliefs.  That disparity means that there is often great popular agitation and political pressure exerted from the Right, but almost none from the Left (I'm using the terms "Left" and "Right" here in their conventional sense:  "Right"  being the core of the GOP and "Left" being those who most consistently and vigorously opposed Bush's foreign and domestic policies). 

During the 2008 election, Obama co-opted huge portions of the Left and its infrastructure so that their allegiance became devoted to him and not to any ideas.  Many online political and "news" outlets -- including some liberal political blogs -- discovered that the most reliable way to massively increase traffic was to capitalize on the pro-Obama fervor by turning themselves into pro-Obama cheerleading squads.  Grass-roots activist groups watched their dues-paying membership rolls explode the more they tapped into that same sentiment and turned themselves into Obama-supporting appendages.  Even labor unions and long-standing Beltway advocacy groups reaped substantial benefits by identifying themselves as loyal foot soldiers in the Obama movement.

The major problem now is that these entities -- the ones that ought to be applying pressure on Obama from the Left and opposing him when he moves too far Right -- are now completely boxed in.  They've lost -- or, more accurately, voluntarily relinquished -- their independence.  They know that criticizing -- let alone opposing -- Obama will mean that all those new readers they won last year will leave; that all those new dues-paying members will go join some other, more Obama-supportive organization; that they will prompt intense backlash and anger among the very people -- their members, supporters and readers -- on whom they have come to rely as the source of their support, strength, and numbers. 

As a result, there is very little political or media structure to Obama's Left that can or will criticize him, even when he moves far to what the Beltway calls the "center" or even the Right (i.e., when he adopts large chunks of the GOP position).  That situation is extremely bad -- both for the Left and for Obama.  It makes impossible what very well might be the apocryphal though still illuminating FDR anecdote:

FDR was, of course, a consummate political leader. In one situation, a group came to him urging specific actions in support of a cause in which they deeply believed. He replied: "I agree with you, I want to do it, now make me do it."

As Judis points out, Obama, on some issues, might move to the Right because he wants to.  In other cases, he will do so because he perceives that he has to, because the combination of the GOP/Blue-Dog-following-caucus/Beltway-media-mob might force him to.  Regardless of Obama's motives, the lack of a meaningful, potent movement on the Left to oppose that behavior ensures that it will continue without any resistance.  The lack of any independent political pressure from the Left ensures that Obama will be either content to ignore their views or will be forced to do so even when he doesn't want to.

Prioritizing political allegiance to their leader was exactly the mistake the Right made for the first several years of the Bush presidency.  Even Bill Kristol admitted in The New York Times:  "Bush was the movement and the cause."  An entire creepy cottage industry arose on the Right devoted to venerating George W. Bush.  And it wasn't until well into his second term, when his popularity had already collapsed, that they began opposing him in a few isolated cases when he deviated from their beliefs -- on immigration reform, the Harriet Miers nomination, Dubai ports, the TARP bailout and the like.  But, by then, it was too late:  Bush became synonymous with "conservatism" because the latter wasn't really about anything other than supporting the President no matter what he did.  The ideological movement and their political leader had merged, and it was destructive for both of them.

Part of the political shrewdness of Obama has been that he's been able to actually convince huge numbers of liberals that it's a good thing when he ignores and even stomps on their political ideals, that it's something they should celebrate and even be grateful for.  Hordes of Obama-loving liberals are still marching around paying homage to the empty mantras of "pragmatism" and "post-partisan harmony" -- the terms used to justify and even glorify Obama's repudiation of their own political values.  Talk Left's Armando described the oddness of this mentality:

As I wrote earlier in a comment, "up yours" to the ACLU used to be known as "triangulation" when a certain William Jefferson Clinton did it. Today it is known as "11 dimensional chess." Another episode today demonstrates the transformation of "triangulation" into "11 dimensional chess:"

Sen. Tom Harkin, a liberal Democrat from Iowa, said fellow Democrats had surrendered too much in a bid to appease three moderate Republicans who can ensure passage in the Senate.

"I think our side gave in too much in order to appease a few people," he said in a hallway interview in the Capitol earlier on Wednesday. He said Democrats should have dared Republicans to filibuster and "see what the public outcry" would have been. "I think the people are getting shortchanged."

Imagine if Bill Clinton had capitulated like this to a Republican Congress in 1995? Or said "up yours" to the ACLU the way Obama did? Do you think the cries of "sellout" would be hard to find today? Me neither.

Political ideas and values that have no meaningful pressure being exerted on their behalf will always be those that are most ignored.  That's just the most basic rule of politics.  Last year, Accountability Now was created to provide exactly that pushback against political incumbents, and there will be a major announcement very soon along with its formal launch (an Executive Director has been hired and much of the infrastructure has been created and the groundwork laid).  For the moment, on one issue after the next, one can vividly observe the harm that comes from a political faction being beholden to a leader rather than to any actual ideas or political principles.

Wall St. Journal Editorial Page, today:

About half-way through President Obama's press conference Monday night, he had an unscripted question of his own. "All, Chuck Todd," the President said, referring to NBC's White House correspondent. "Where's Chuck?" He had the same strange question about Fox News's Major Garrett: "Where's Major?". . . .

The President was running down a list of reporters preselected to ask questions. The White House had decided in advance who would be allowed to question the President and who was left out. . . .

We doubt that President Bush, who was notorious for being parsimonious with follow-ups, would have gotten away with prescreening his interlocutors.

Ari Fleischer, Tuesday night, The Bill O'Reilly Show:

O'REILLY: Look, [Obama] had those guys written down, who he was going to call on. Now, in other press conferences, they'd just look around and go: "this one, that one, this one" - correct?

FLEISCHER: Well, George Bush never did that. . . . Writing it down gives the President more control.

O’REILLY: OK, so George Bush came in with a list of guys he was going to call on?

FLEISCHER: Yes, I used to prepare it for him. I would give him a grid, show him where every reporter is seated. And there are some reporters, you know, in that briefing room, you can imagine, Bill, you get a lot of dot coms and other oddballs who come in there. They’re screened.

O’REILLY: Like the Huffington Post. Now it gets called on.

FLEISCHER: And I used to seat them all in one section. I would call it "Siberia." And I told the President, "Don’t call on Siberia."

Eric Boehlert, Lapdogs:

At one point while making his way through the press questioners, Bush awkwardly referred to a list of reporters whom he was instructed to call on. "This is scripted," he joked. The press laughed. But Bush meant it was scripted, literally. White House spokesman Ari Fleischer later admitted he compiled Bush's cheat sheet, which made sure he did not call on reporters from some prominent outlets like Time, Newsweek, USA Today, or the Washington Post.

Michael Crowley, The New York Observer:

In fact, the [] only moment of candor [of the March 6, 2003 Press Conference] may have come when Mr. Bush admitted during the conference that he was calling on reporters according to his pre-arranged list of names, which his press secretary, Ari Fleischer, later copped to preparing.

"This is scripted," Mr. Bush joked.

Strangely, many reporters laughed at this remarkable joke, which had the additional benefit of being true.

Deliberate deceit or complete editorial recklessness from The Wall St. Journal Editorial Page?  And which is worse?  Are there any limits at all to the factually false claims newspapers can spew without correction?  We'll see.  And of all the canards filling the overflowing canon of self-pitying right-wing grievances, the complaint that the Beltway media was unfairly and excessively critical of the Bush presidency has to be the single most laughable (as even Bush's own Press Secretary will tell you).

Perhaps most pitifully of all, the WSJ Editors end with a condemnation not only of Obama for pre-selecting the reporters, but also of other newspapers for failing to make an issue of it:

Few accounts of Monday night's event even mentioned the curious fact that the White House had picked its speakers in advance. We hope that omission wasn't out of fear of being left off the list the next time.

This -- from the same newspaper Editors who are either dishonestly concealing or never bothered to notice that the former President, the one who served their ideological agenda, did exactly the same thing.

* * * * *

See also:  this post from earlier today on Congress' first step to impose meaningful limits on Obama's executive power.

Earlier this week, I wrote about the State Secrets Protection Act of 2008, which was co-sponsored by numerous key Senators [including Joe Biden and Hillary Clinton, as well as the Senate Judiciary Committee's Chair (Pat Leahy) and ranking member (Arlen Specter)], and which was approved by the Judiciary Committee last year with all Democrats voting in favor.  That bill, in essence, sought to ban the exact abuse of the State Secrets privilege which the Bush administration repeatedly invoked and which, now, the Obama administration has embraced:  namely, as a weapon to conceal and immunize government lawbreaking (by compelling the dismissal of entire lawsuits in advance) rather than a limited, document-by-document evidentiary privilege.

Yesterday -- as an obvious response to the Obama DOJ's support for the Bush view of the privilege -- Leahy and Specter, along with Russ Feingold, Claire McCaskill, Sheldon Whitehouse and Ted Kennedy, re-introduced that bill in the Senate.  When doing so, Leahy made clear that the bill was more needed than ever in light of the actions of the Obama administration:

During the Bush administration, the state secrets privilege was used to avoid judicial review and skirt accountability by ending cases without consideration of the merits [ed: exactly what the Obama DOJ endorsed this week]. It was used to stymie litigation at its very inception in cases alleging egregious Government misconduct, such as extraordinary rendition and warrantless eavesdropping on the communications of Americans [ed:  exactly what the Obama DOJ endorsed this week]. . . .

We held a Committee hearing on this issue last year, and the appropriate use of this privilege remains an area of concern for me and for the cosponsors of this bill. In light of the pending cases where this privilege has been invoked, involving issues including torture, rendition and warrantless wiretapping, we can ill-afford to delay consideration of this important legislation.

Sen. Feingold explicitly criticized the Obama administration earlier this week for its endorsement of exactly these abusive theories.  Several hours before the Senate bill was introduced, several key House Democrats introduced a similar bill in the House.  The ACLU promptly endorsed the bill.

A President who seeks to aggrandize his own power through wildly expansive claims of executive authority ought to be vigorously criticized.  But the ultimate responsibility to put a stop to that lies with the Congress (and the courts).  More than anything else, it was the failure of the Congress to rein in the abuses of the Bush presidency (when they weren't actively endorsing those abuses) that was the ultimate enabling force of the extremism and destruction of the last eight years.

What we need far more than a benevolent and magnanimous President is a re-assertion of Congressional authority as a check on executive power.  Even if Obama decided unilaterally to refrain from exercising some of the powers which the Bush administration seized, that would be a woefully insufficient check against future abuse, since it would mean that these liberties would be preserved only when a benevolent ruler occupies the White House (and, then, only when the benevolent occupant decides not to use the power).  Acts of Congress -- along with meaningful, enforced oversight of the President -- are indispensable for preventing these abuses.  And that's true whether or not one believes that the current occupant of the Oval Office is a good, kind and trustworthy ruler.  

My time is limited this morning, but Chris in DC -- a Washington lawyer and regular commenter here -- elaborates on his own blog as to why it is a re-assertion of Congressional authority (not kind and good acts from Obama) that is the paramount priority:

What is often overlooked in all these discussions about the specific abuses of the Bush administration, amid all the resentment toward a particular president and his Republican party, is how much severe damage these excesses are doing to the very structure of our constitutional system. That corrosion of all sources of institutional (and popular) power other than the federal executive branch is, to me, far more egregious, more significant, and more difficult to reverse than the control and individual acts of a certain president or party in power at any given time.

As Marcy Wheeler notes, the co-sponsors of this bill are among the most influential in the Senate.  The bill is endowed with the two most precious Beltway commodities -- bipartisanship (with Specter on board) and the blessing of a saintly "centrist" (McCaskill).  It's a bill that is co-sponsored by the two leading Senators on the Senate Judiciary Committee as well as the Chairman of the House Judiciary Committee (Conyers).  If they are serious about imposing meaningful limits on the Obama DOJ's attempt to shield the executive branch from judicial scrutiny, they will be able to move this bill quickly.  I hope to have more shortly on ways to push that process along, but more vital even than limits on this privilege is having a Congress that once again acts as a meaningful check on executive transgressions.  Restoration of that system is of far more enduring value than Obama's issuance of magnanimous and irrevocable-on-a-whim decrees.

* * * * * 

In yesterday's post focusing on Marc Ambinder's "reporting" yesterday (Armando describes more accurately what it really is in the struck-through language), I made reference to Andrew Sullivan's immediate condemnation of the Obama DOJ's embrace of the Bush position on State Secrets and contrasted that to his defense of the Obama DOJ yesterday, noting that he appeared to have changed his views on this matter rather substantially in a short period of time.  Last night, Andrew wrote that I misstated his position (emphasis in original):

For my part, I have not changed my mind and never, pace Glenn, stated that the Obama administration was complicit in torture. I said it should be very careful to avoid that.

I certainly didn't mean to misinterpret what he wrote, and don't think I did.  Just compare what Andrew actually wrote to what I said he wrote (emphasis added):

Me yesterday:  Andrew was "arguing just two days ago that Obama was becoming retroactively complicit in Bush's torture program as a result of shielding it from scrutiny."

Andrew on Sunday:  "This is a depressing sign that the Obama administration will protect the Bush-Cheney torture regime from the light of day. And with each decision to cover for their predecessors, the Obamaites become retroactively complicit in them."

I tried to track his exact language in describing what he said, so it's difficult (at least for me) to see how I mischaracterized what he wrote.  In any event, I agree with Andrew's general argument from Sunday that a form of complicity can arise if the Obama administration is too vigorous and dedicated to keeping Bush crimes concealed and protecting them from any scrutiny and accountability (and that complicity analysis should always begin with, and be grounded in, the United States' obligations under Articles 2, 4, 7 and 15 of the Convention Against Torture, to which Ronald Reagan bound the U.S. by signing it in 1988).  It's far too early to declare that this has happened, but embracing the long-excoriated Bush view of the State Secrets privilege (and vesting power in people to implement views like this) are clearly ominous steps in that direction.

(updated below - Update II - Update III)

From The New York Times Editorial Page today ("Continuity of the Wrong Kind"):

The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law.

On Monday, a Justice Department lawyer dispatched by the new attorney general, Eric Holder, appeared before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco. The case before them involves serious allegations of torture by five victims of President Bush’s extraordinary rendition program. The five were seized and transported to American facilities abroad or to countries known for torturing prisoners.

Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred.

Voters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.

The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it. For one thing, there is ample public information available about the C.I.A.’s rendition, detention and coercive interrogation programs. The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.

Last night, Rachel Maddow interviewed the torture victims' attorney, Ben Wizner of the ACLU, and both of them did an excellent job highlighting the travesty of what the Obama DOJ here did:

* * * * *

Despite all of this, The Atlantic's Marc Ambinder continues to defend the Obama administration's conduct here, and does so in a way that so helpfully and vividly illustrates how Beltway "reporting" works and what Beltway journalists mean by that term.

On the day of the hearing, Ambinder wrote a misleading, knee-jerk defense of the Obama administration based on random thoughts that had popped into his head and which reflected a total lack of understanding even of the basic issues.  After being criticized for that, he announced yesterday that he was "going to spend some more time on the phone this afternoon attempting to figure out why the Obama Administration ratified the invocation of the state secrets' privilege yesterday."  Then, a few hours later, he wrote a post once again defending the Obama administration, this time based largely on what anonymous Obama officials told him.  I'm going to address the "substance" of those claims in a minute, but first, consider what Ambinder actually did to "report" on this story:

He called up "administration officials," granted them full anonymity to defend their position (without bothering to explain why anonymity was warranted here), did not offer a single identifying fact about who these "officials" are, and then faithfully wrote down what they said, without a word of questioning or skepticism.  He then found two independent sources who also praised Obama's decision.  He did not cite or quote a single source critical of any of these claims -- including even the ACLU's Wizner, who he never bothered to call to ask for comment.  It was a completely one-sided act of uncritical administration-amplifying stenography -- "anonymous administration officials say X and I'm going to write that down and pass it on uncritically and then praise it" --  which is exactly what many Beltway reporters have long meant when they praise themselves for doing "original reporting." 

Ambinder's Atlantic colleague, Andrew Sullivan, quickly praised Ambinder for his "reporting" and -- after arguing just two days ago that Obama was becoming retroactively complicit in Bush's torture program as a result of shielding it from scrutiny -- changed his mind and has now decided that Obama's embrace of Bush's state secrets theory shows how wonderfully "pragmatic" (the all-purpose Obama-justifying term) and thoughtful and sober Obama's governing style is.

What possible justification is there for granting administration officials anonymity to explain why they are embracing a Bush-era weapon that they have long criticized?  And why does an administration swearing great levels of transparency and accountability -- and vowing to use secrecy only when absolutely necessary -- need to hide behind a wall of anonymity in order to explain why they did what they did here?  Why can't they attach their names to this explanation, so that they can be questioned about it and held accountable?  

I'm not arguing that there's no value in hearing from official sources, even if they're hiding behind a wall of unwarranted anonymity, but what Ambinder just did here isn't any different than what Robert Gibbs would do if asked about this incident -- namely:  convey what DOJ officials said, perhaps cite an outside source that agrees, and leave it at that.  That isn't "reporting"; by definition, it's subservient pro-administration stenography.  And nobody who objected to this practice when it served the Bush agenda should cheer it on when it serves the Obama agenda.  The position of White House spokesman is already filled; nobody needs "reporters" replicating that function.

* * * * *

What makes Ambinder's uncritical, mindless, one-sided recitation particularly galling is that the excuses he is passing on for the Obama DOJ's behavior are so patently frivolous.  Let's just consider each of them in order:

1.  The Obama DOJ, and Eric Holder specifically, had insufficient time to review the issues here and therefore embraced the pending Bush position as a "holding pattern."

I'd be willing to bet that 90% of non-lawyers know what parties do in situations when there is a court deadline approaching and, for whatever reasons, they need more time.  The Obama administration has certainly shown in the past that they know what to do:

President Obama’s Justice Department is asking a federal judge for at least two more weeks to answer the thorny question of who is and who isn’t an "enemy combatant."

In a filing in federal court in Washington Wednesday, government lawyers asking for the delay cited Obama’s inauguration last week and the executive order he signed ordering a review of the cases of the roughly 245 war-on-terror detainees presently held at Guantanamo Bay. . . .

"The Government is now assessing how it will proceed in the above-captioned Guantanamo Bay detainee habeas corpus cases, in light of the change in Administrations and the requirements of the Executive Order," Justice Department lawyers wrote in their new motion. "Time is needed to make that assessment and determination. Accordingly, the Government requests a two-week extension…to allow the new Administration to assess the Government’s position in this matter.”

Or this:

In his one of his first acts in office yesterday, President Barack Obama instructed prosecutors to seek 120-day delays in all cases now before U.S. military tribunals at Guantanamo Bay in Cuba while his administration evaluates the situation.

If, as Obama's Atlantic spokesman claims, this were really the problem -- that the Obama DOJ needed more time to review what they wanted to do -- then the solution is easy and obvious:  you ask the court for more time.  You don't march into court and explicitly advocate a Bush weapon that you've spent the last several years excoriating as a dangerous abuse of power -- thus risking that this tyrannical weapon becomes judicially approved and torture victims forever denied the right to a day in court.

Seeking more time is exactly what the Obama DOJ did in other cases -- so why not here if that were really the reason?  And here, the ACLU actually suggested that the DOJ seek an extension and indicated their consent to any extension the DOJ wanted.  Even the judges on the panel expected that the Obama DOJ would change positions.  And this is a case where obtaining an extension is far easier than in those other cases, since -- unlike those other cases -- this isn't about whether someone gets released from detention.  It's only a civil case with far less time-urgency.

The claim that the Obama DOJ was forced by a time deadline to embrace the Bush position is so absurd as to be insulting.  Too bad the anonymous officials making this claim didn't have a reporter willing to challenge them. 

2.  There may be genuine state secrets involved in this case that the Obama DOJ didn't want to "waive" by abandoning Bush's claim of privilege.

This is even more disingenuous than the first excuse.  As I documented yesterday -- and as the New York Times Editorial above also highlights -- the alternative to Bush's lawsuit-killing use of the privilege is not to waive the privilege entirely.  Everyone -- including the ACLU -- acknowledges that the Government should have the right to assert the State Secrets privilege on a document-by-document basis.  The controversy was and is only about one thing:  the use of the privilege to compel the dismissal of entire lawsuits in advance -- in other words, to convert the State Secrets privilege from what it always was (a focused evidentiary privilege) to what it was never intended to be (full-scale immunity for government lawbreakers from all judicial accountability).

Therefore, had the Obama administration adhered to its alleged beliefs -- and simply told the court that it does not support the Bush administration's use of the privilege to bar entire lawsuits in advance -- it would still have had every opportunity to protect whatever genuine secrets it believes are present in this case.  The lawsuit would simply have been remanded to the District Court, and then the Obama DOJ could assert the privilege over whatever documents or other facts it believes genuinely constitute state secrets.

That use of the privilege -- on a document-by-document basis, with judicial review -- is what Democrats have long claimed to believe in.  The Obama DOJ would not have lost that right had they abandoned the Bush position.  The exact opposite is true:  had they abandoned the Bush position, they then would be in the position they claim to want to be in, whereby they can protect whatever legitimate secrets exist.  All they are accomplishing now is to make sure the entire lawsuit is dismissed without that determination ever taking place -- i.e., exactly what they have long claimed is so abusive and destructive about Bush's use of the privilege.

The anonymous quote Ambinder passes along -- "If you decide today precipitously to waive this privilege, you can't get it back.  If you decide to assert it, you can always retract it in the future" -- is thus absolutely wrong.  They would not have waived their right to assert privilege over actual secrets had they abandoned Bush's generalized claim.  And is there anyone anywhere -- other than Marc Ambinder -- who thinks it's remotely likely that the Obama DOJ, having actively defended the Bush theory in open court in this case, is going to retract it at some point and agree that torture victims are entitled to their day in court?

3.  The Obama administration wants to protect rendition agreements with other countries.

This is the claim that Ambinder passed on as to what genuine secrets are supposedly involved in this case, and it's the most inane of all the excuses.  Obama has banned rendition to countries (such as Egypt and Jordan) where torture is likely.  If there are still specific rendition agreements that the Obama DOJ thinks are secret and need to be protected, then they can and should assert the privilege as to those documents.  That has nothing to do with demanding that the entire lawsuit be dismissed in advance.  

As Wizner told me this morning, there is no reason why the ACLU would even need those supposedly secret documents to make their case.  Whether the U.S. has rendition agreements with Jordan or Morocco, or what the content of those agreements are, is irrelevant.  Besides, other countries -- such as Sweden, which already investigated these claims and fully disclosed their involvement in the CIA's rendition program when awarding the victims compensation -- have already made certain that many of these facts are disclosed.  As is true for any lawsuit, the fact that there may be specific documents that are privileged is no reason at all to demand that the entire lawsuit be dismissed and that courts be barred from ever considering the subject matter.

* * * * *

Beltway reporters establish their access and favored status by serving as mindless, uncritical conduits for government claims.  They prove their Seriousness bona fides by demonstrating their willingness/eagerness to mock and criticize unserious, "Far Left" groups such as the ACLU.  That's all Ambinder is doing here, and he's not even pretending to exercise an iota of critical thought.  Traditionally, that's how reporters secure a place squarely within "the grid in front of the President."

As Wizner said in his MSNBC interview last night, the Obama administration has taken some unquestionably important steps in terminating some of the worst abuses of the Bush era.  None of this negates any of that.  There's no rational way to claim that Obama is the equivalent of Bush on these issues (see here as well).

But this is a case where the Obama DOJ is working actively to preserve one of the linchpins of those abuses:  expansive secrecy and immunity from judicial proceedings in order to conceal government crimes.  That conduct is directly contrary to Obama's general commitment to restore transparency and, worse, his specific opposition to the Bush State Secrets privilege.  

Whether someone thinks this is a good lawsuit or not is irrelevant, as is one's view about whether it contains actual secrets.  It's the use of the State Secrets privilege as a means for evading all judicial accounability that the Obama DOJ is defending and, if they win, forever institutionalizing for themselves and future Presidents who want to break the law and then prevent courts of law from scrutinizing what they did.

Doing this is clearly designed to retain credibility with the CIA and avoid the political pressures that would come from a judicial adjudication of Bush's torture and rendition policies.  Whatever the motives, the Obama DOJ is embracing exactly that which they claimed to oppose -- a dangerous weapon which is subject to very severe abuse -- and there is no plausible excuse for it.

UPDATE:  Or, to put all of this much more succinctly -- from a recent interview with Marc Ambinder (h/t Jim White):

Q. What single person played the biggest role / had the biggest influence on your journalism career?

MA:  Mark Halperin.

That explains absolutely everything.

UPDATE II:  The Columbia Journalism Review adds its editorial voice to those debunking the justifying myths being circulated on behalf of the Obama DOJ and criticizing the White House press corps for failing to press the administration on this clear reversal of position.  The entire piece, by Clint Hendler, is worth reading, and it concludes this way:

Before Monday’s events fade too far away, the press must get a high profile member of the administration on the record about this decision, in a way that probes and exposes the dangerous logic underlaying it. The anonymous sources quoted by The Atlantic’s Marc Ambinder just won’t cut it. Luckily, today’s press conference presents a chance to do better.

Ultimately, the real responsibility here lies with Congress.  It's hardly surprising, as Professor Darren Hutchinson notes, that the Obama administration is eager to hold on to potent weapons of executive power (though Democrats' long-standing specific attack on this particular executive weapon does make the behavior more notable).  Presidents typically seek to preserve and expand their own power, and ultimately, it's the duty of Congress to prevent those abuses.

Leading Senate Democrats, when Bush was President, were pushing legislation to prohibit the use of the States Secret privilege in exactly the way that the Obama DOJ is now using it.  That legislation is more needed now than ever before.

UPDATE III:  Marc Ambinder has yet another post defending the Obama administration (in which he replies to my points here without explicitly acknowledging that he's doing so), and this process has now become truly -- genuinely -- bizarre.  This is what is happening:

Each time a criticism is voiced about the Obama DOJ, Ambinder runs to anonymous DOJ officials and asks them about the criticisms, and they -- hiding behind the anonymity he gives them -- then respond through Ambinder.  Ambinder writes down everything they say, puts his name at the top, publishes it, and serves as their loyal spokesman. 

Go read what he just wrote and see if he does anything different than that.  Does anyone want to claim that this is the role of a journalist?   And why can't those DOJ officials just come forward, identify themselves, address these claims directly and explain what they're doing?  Why are they hiding behind Marc Ambinder and sending him to do their bidding?

Compare what Ambinder just wrote -- the mindless, loyal parrot ing (yet again) of anonymous DOJ sources -- to what Stephen Colbert said while mocking Beltway journalists to their face at the 2006 White House Correspondent's Dinner:

But, listen, let's review the rules. Here's how it works. The President makes decisions. He's the decider. The press secretary announces those decisions, and you people of the press type those decisions down. Make, announce, type. Just put 'em through a spell check and go home. Get to know your family again. Make love to your wife. Write that novel you got kicking around in your head. You know, the one about the intrepid Washington reporter with the courage to stand up to the administration? You know, fiction!

Isn't that exactly what Ambinder is doing -- and not even pretending to do anything else?  And he's writing things down that DOJ officials say and repeating them even when they make absolutely no sense (as but the latest example:  he actually claims in this last post that merely to seek an extension would have itself constituted a "retraction" of the State Secrets privilege; to describe that claim is to illustrate its absurdity).  And Ambinder wants to announce on behalf of his government script-writers:  "they're not motivated by what civil libertarians may write on their blogs."

Jane Hamsher has much more on this, including this absolutely true observation:

But what is going on right now in the world of DC journalism finds its most naked expression in Ambinder's piece, though I've seen other glaring examples of late -- journalists are scrambling for who gets "access" to the White House. So there's no end to the bullshit they'll write to ingratiate themselves to potential sources, or the inconvenient facts they'll edit out in order to be the new Bob Woodward.

Cernig adds:  

Unfortunately Ambinder is only one among several who seem to be vying to become the next generation of stenographers with access . . . They know from those previous alumni's examples that the only way to get seriously good insider access is to faithfully copy down and report the news in exactly the way unofficially officials ask them to - no attribution required. They've been called "lapdogs" of democracy rather than the watchdogs they should be, and they are a bipartisan breed.

In the Beltway royal court, there is no mark of prestige greater than proximity to presidential power (hence the reverence for Woodward).  In the warped world of the Washington media, those who are chosen to be the obedient parrots for administration officials -- the scribes to the Crown -- are actually considered "good journalists," and there is much jockeying going on among them to see who gets chosen for that subservient post in the new administration.  Ambinder has helped himself greatly with his incomparably sycophantic "reporting" over the last three days.

(updated below)

Daily Kos' Meteor Blades points to a rare moment of television candor last night, as Ari Fleischer explained to Bill O'Reilly how and why the White House determined which reporters were allowed to ask questions at Press Conferences (i.e.: only establishment journalists seated by Fleischer "in the grid in front of" the President -- not "dot coms and other oddballs who come in there"):

Indeed.  It was extremely important to the White House that only "reporters" such as NBC's David Gregory, CNN's John King, Fox's Jim Angle and friends be allowed to ask questions -- because they could be relied upon to stay within the approved White House script.  And that's exactly what they always did.  

In a March 7, 2003 Washington Post article -- published one day after Bush's notorious  pre-Iraq-War Press Conference where reporters set a new low for fear-driven meekness and which, as Eric Boehlert documented, was fully scripted (as the President even made a mocking point of noting) -- Mike Allen, then a Post reporter, wrote that Bush, by that point in his presidency, had held far fewer press conferences than his predecessors.  But he quoted White House Communications Director Dan Bartlett to explain why they nonetheless decided to hold that pre-war Press Conference on March 6 (via Nexis; h/t Buzzflash):

"In this case, we know what the questions are going to be, and those are the ones we want to answer," Bartlett said. "We think the public will see the thought and care and attention he's given to a lot of the different questions that are being asked about the diplomatic side and the military side and the potential post-Iraq issue. These are all legitimate questions that he has answers for and wants to talk about."

Of course they "knew what the questions were going to be" -- i.e., only "the ones they wanted to answer" -- because, as Fleischer explained last night, they only call on the journalists who can be trusted to pose predictable questions that the President would want to answer:  only those favored-by-the-White-House journalists who were seated, as Fleischer said, "on the grid in front of you."  That is how -- to use Cheney aide Catherine Martin's explanation for why Dick Cheney loved to go on Meet the Press and considered it his "best format" -- the White House "controlled the message":  by only interacting with reporters they knew would adhere to their script, while excluding the disfavored ones relegated to "Siberia" (a very revealing and appropriate term for the White House to have used).

The only risk of script-deviation would come from allowing reporters outside of this favored establishment circle -- i.e., ones who are something other than royal court spokespeople -- to ask questions.  Being chosen by Ari Fleischer to "sit in the grid in front of the President" is probably the most embarrassing indictment of a journalist's integrity as one can imagine, though they undoubtedly consider it a proud hallmark of their importance and prestige.  Indeed, as Meteor Blades notes, one of the "reporters" placed "in the grid in front of the President" along with David Gregory, John King and Jim Angle -- and thus authorized to ask questions -- was Jeff Gannon of "Talon News," who asked questions like this.  Clearly, access to the favored grid was based on nothing other than a reporter's willingness only to ask the questions the President wanted to hear.

At his first presidential Press Conference this week, Barack Obama also had a pre-scripted list of reporters who he called on, but -- to the White House's credit -- it included the excellent Sam Stein of The Huffington Post as well as Helen Thomas, who, together, asked the only two unpredictable, meaningfully adversarial questions (Stein cited Pat Leahy's argument about the need for full-scale investigations into Bush crimes while Thomas challenged Obama's condemnation of Iran's nuclear program by asking who the only Middle Eastern country was with a nuclear weapon).  And AmericaBlog's Joe Sudbay was credentialed to attend the Press Conference, though he wasn't called on.

In his book, Lapdogs, Boehlert wrote in detail about the night of March 6, 2003 -- the last Press Conference the President would give before attacking Iraq:

The press corps's barely-there performance that night, as reporters quietly melted into the scenery, coming at such a crucial moment in time remains an industry-wide embarrassment. Laying out the reasons for war, Bush that night mentioned al-Qaida and the terrorist attacks of September 11 thirteen times in less than an hour, yet not a single journalist challenged the presumed connection Bush was making between al-Qaida and Iraq, despite the fact that intelligence sources had publicly questioned any such association. And during the Q&A session, nobody bothered to ask Bush about the elusive Osama bin Laden, the terrorist mastermind whom Bush had vowed to capture. Follow-up questions were nonexistent, which only encouraged Bush to give answers to questions he was not asked.

At one point while making his way through the press questioners, Bush awkwardly referred to a list of reporters whom he was instructed to call on. "This is scripted," he joked. The press laughed. But Bush meant it was scripted, literally. White House spokesman Ari Fleischer later admitted he compiled Bush's cheat sheet, which made sure he did not call on reporters from some prominent outlets like Time, Newsweek, USA Today, or the Washington Post. Yet even after Bush announced the event was "scripted," reporters, either embarrassed for Bush or embarrassed for themselves, continued to play the part of eager participants at a spontaneous news conference, shooting their hands up in the air in hopes of getting Bush's attention. For TV viewers it certainly looked like an actual press event.

That was not the night's only oddly scripted moment. Before the cameras went live, White House handlers, in a highly unusual move, marched veteran reporters to their seats in the East Room, two-by-two, like school children being led onto the stage for the annual holiday pageant. The White House was taking no chances with the choreography. . . .

The entire press conference performance was a farce -- the staging, the seating, the questions, the order, and the answers. Nothing about it was real or truly informative. It was, nonetheless, unintentionally revealing. Not revealing about the war, Bush's rationale, or about the bloody, sustained conflict that was about to be unleashed inside Iraq. Reporters helped shed virtually no light on those key issues. Instead, the calculated kabuki press conference, stage-managed by the White House employing the nation's most elite reporters as high-profile extras, did reveal what viewers needed to know about the mind-set of the MSM on the eve of war.

They chose well the cast to play the role of "journalists" and who, for their faithful script-adherence, were "rewarded" with a starring role, in the royal court box in front of the President.  Notably, two of the handpicked media stars from that event -- David Gregory and John King -- have both since been promoted within their networks to two of the most prominent "news" roles on television.  The rewards for sitting politely in the grid in front of the President are bountiful.

UPDATE: In The New York Observer, Michael Crowley wrote an excellent account of that March, 2003 Press Conference, really capturing how subservient was the behavior of the selected journalists and how coordinated and contrived the whole event was.

(updated below w/transcript)

Dr. Mustafa Barghouti, a Palestinian physician born in Jerusalem and living in the West Bank, was the second-place candidate behind Mahmoud Abbas in the 2005 presidential election in the Palestinian National Authority (a BBC profile of him is here).  Dr. Barghouti is my guest today on Salon Radio to discuss today's Israeli elections and the state of Israeli-Palestinian relations generally, including:

• the implications of Benjamin Netanyahu's becoming the next Israeli Prime Minister ("this is the end of the peace process and the end of the possibility of peace for the two-state solution");
•  
• the meaning of Avigdon Lieberman's prominent participation in the Israeli government ("Lieberman is a fascist" -- an opinion that seems to be shared by The New Republic's Marty Peretz, of all people, who, echoing my argument yesterday, wrote that Lieberman "is the Israeli equivalent of Jorg [sic] Haider of Austria");
•  
• the imperative that the U.S. change policies toward the Middle East if the peace process is to be salvaged and the likelihood that the Obama administration will do so;
•  
• the impact on Hamas from the recent Israeli attack on Gaza (Hamas' popularity actually increased more in the West Bank then it did even in Gaza);
•  
• the amount of blame Barghouti assigns to the Palestinian side for the move to the Right in Israel (not much);
•  
• the barriers imposed on him by Israel even when he was attempting to campaign for President (extreme restrictions on his movement and multiple arrests by the Israelis);
•  
• the response to the claim that the fractured Palestinian leadership precludes meaningful negotiations by the Israelis (allowing free elections will produce a unified Palestinian government); and,
•  
• the rationale for Barghouti's advocacy of non-violence as the optimal means of resistance to the Israeli occupation.

I found Barghouti's answers to be an extremely interesting expression of a Palestinian perspective on these issues.  To listen to the interview, click PLAY on the recorder below (as always, interviews can be downloaded as MP3s here, and as ITunes here). The discussion is roughly 18 minutes and a transcript will be posted shortly.

UPDATE:  The transcript is here.

(updated below - Update II - Update III - Update IV)

From the Obama/Biden campaign website, mybarackobama.com, here was what the Obama campaign was saying -- back then -- about the State Secrets privilege:

Apparently, the operative word in that highlighted paragraph -- unbeknownst to most people at the time -- was "the Bush administration," since the Obama administration is now doing exactly that which, during the campaign, it defined as "The Problem," the only difference being that it is now Obama, and not Bush, doing it.  For journalists who haven't bothered to learn the first thing about this issue even as they hold themselves out as experts on it, and for Obama followers eager to find an excuse to justify what was done, a brief review of the State Secrets privilege controversy is in order. 

Nobody -- not the ACLU or anyone else -- argues that the State Secrets privilege is inherently invalid.  Nobody contests that there is such a thing as a legitimate state secret.  Nobody believes that Obama should declassify every last secret and never classify anything else ever again.  Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege.  Those are all transparent, moronic strawmen advanced by people who have no idea what they're talking about.

What was abusive and dangerous about the Bush administration's version of the States Secret privilege -- just as the Obama/Biden campaign pointed out -- was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn't be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security.  That is the theory that caused the bulk of the controversy when used by the Bush DOJ -- because it shields entire government programs from any judicial scrutiny -- and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).  

Go read any critic of Bush's use of the State Secrets privilege and those are the objections you will find (.pdf).  Kevin Drum last night explained it quite clearly:

By itself, this [the quantitative increase in the post-9/11 use of the privilege] is bad enough. But it's not the worst part of the Bush administration's use of the privilege.

Before 2001, the state secrets privilege was mostly used to object to specific pieces of evidence being introduced in court, something that nearly everyone agrees is at least occasionally necessary. But the Bush administration changed all that. In their typical expansive way, they decided to apply the privilege not just to individual pieces of evidence, but to get entire cases thrown out of court. What's more, they did this not merely when a state secret was incidental to some unrelated complaint, but when the government itself was the target of the suit.

Now Barack Obama is president, and unfortunately he's decided to continue the Bush administration's expansive reading of the privilege.

To underscore just what a complete reversal the Obama DOJ's conduct is, consider what Seante Democrats were saying for the last several years.  In early 2008, Sens. Kennedy and Leahy, along with Sen. Arlen Specter, sponsored the State Secrets Protection Act.  It had numerous co-sponsors, including Joe Biden.  In April, 2008, the Senate Judiciary Committee approved the bill, with all Committee Democrats voting for it, along with Specter.  The scheme of restrictions imposed on the privilege by that bill was the consensus view of the pre-2009 Democratic Party.

The primary purpose of that bill is to bar the precise use of the State Secrets privilege which the Obama DOJ yesterday defended:   namely, as a tool to force courts to dismiss entire lawsuits from the start without any proceedings being held, rather than as a focused instrument for protecting specific pieces of classified information from disclosure. 

That bill explicitly provides that "the state secrets privilege shall not constitute grounds for dismissal of a case or claim" (Sec. 4053(b)).  Instead, the President could only "invoke the state secrets privilege as a ground for withholding information or evidence in discovery or for preventing the introduction of evidence at trial" (Sec. 4054(a)), and must submit each allegedly privileged piece of evidence to the court for the court to determine whether each item is legitimately subject to the privilege (Sec. 4054(d-e).  Where the court rules that a specific piece of evidence is privileged, it must attempt to find an evidentiary substitute (e.g., a summary of the evidence, a partially redacted copy, compelled admissions by the Government of certain allegations), and then -- only after all the evidence is gathered in discovery -- can the court dismiss the lawsuit only if it finds, in essence, that the plaintiffs cannot prove their case without reliance on the specific privileged information (Sec. 4055).

That has been the argument of Democrats for quite some time -- as well as civil libertarians such as Russ Feingold and the ACLU, both of whom endorsed that bill:  that what was abusive and dangerous about Bush's use of the State Secrets privilege was the preemptive, generalized use of this privilege to force dismissal of entire lawsuits in advance, even where the supposed secret to be concealed was the allegedly criminal activity itself.  And that is exactly the usage that the Obama administration is now defending. 

It doesn't take much time or energy to understand why that instrument is so pernicious.  It enables a Government to break the law -- repeatedly and deliberately -- and then block courts from subjecting its behavior to any judicial accountability, and prevent the public from learning about the lawbreaking, by claiming that its conduct generally is too secret to allow any judicial review.  Put another way, it places Presidents and their aides beyond and above the rule of law, since it empowers them to break the law and then prevent their victims -- or anyone else -- from holding them accountable in a court of law.  As Russ Feingold put it:

When the executive branch invokes the state secrets privilege to shut down lawsuits, hides its programs behind secret OLC opinions, over-classifies information to avoid public disclosure, and interprets the Freedom of Information Act as an information withholding statute, it shuts down all of the means to detect and respond to its abuses of the rule of law – whether those abuses involve torture, domestic spying, or the firing of U.S. Attorneys for partisan gain.

In defending the Obama administration's position (without beginning to understand it), The Atlantic's Marc Ambinder revealingly wrote -- on behalf of civil libertarians who he fantasizes have anointed him their spokesman:

It wouldn't be wise for a new administration to come in, take over a case from a prosecutor, and completely change a legal strategy in mid-course without a more thorough review of the national security implications. And, of course, the invocation itself isn't necessarily an issue; civil libertarians and others who voted for Obama did so with the belief that his judgment and his attorney general would be better stewards of that privilege than President Bush and his attorney generals (and vice president.)

We don't actually have a system of government (or at least we're not supposed to) where we rely on the magnanimity and inherent Goodness of specific leaders to exercise secret powers wisely.  That, by definition, is how grateful subjects of benevolent tyrants think ("this power was bad in Bush's hands because he's bad, but it's OK in Obama's hands because he is good and kind").  Countries that are nations of laws rather than of men don't rely on blind faith in the good character of leaders to prevent abuse.  They rely on what we call "law" and "accountability" and "checks and balances" to provide those safeguards -- exactly the type that Democrats, when it came to the States Secret privilege, long insisted upon before January 20, 2009.  

Democrats have large majorities in both houses of Congress; they ought to use it to legislatively bar the power that the Obama DOJ is now attempting to vest in the new President by enacting the legislation they spent all of last year insisting they favored.  Now that the Obama DOJ is seeking to acquire that power for its new President, the need for that law is more acute than ever.

UPDATE:  Writing at FDL in September, 2008, Obama's new OLC official, Assistant Attorney General Marty Lederman, criticized the exact State Secrets privilege theory embraced yesterday by the Obama DOJ:

The next Administration should review the grounds and procedures for invoking the state secrets privilege. In recent years, the Executive Branch has increasingly used this privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program.[26] The next President should commit to invoking this privilege only where national security interests (rather than the interest in avoiding embarrassment or judicial scrutiny) truly require it.

On his own blog in October, 2007, Lederman advocated -- as an antidote to the injustices of telecom immunity -- Congressional legislation designed to bar the use of the State Secrets privilege as a means for preventing judicial scrutiny of the NSA eavesdropping program, arguing that Congress "should also insist on a statutory amendment limiting the scope of any 'state secrets' privilege to allow courts to adjudicate the legality of the NSA program without publicly revealing technological capabilities that must remain public."  Virtually all critics of Bush's executive power abuses would be vehemently opposed -- and, in the past, have been -- to the theories advanced yesterday by the Obama DOJ.

UPDATE II:  When Sen. Kennedy introduced the State Secrets Protection Act in January, 2008, he reviewed the history of abuse of the privilege by the Bush administration and specifically highlighted as an example of abuse the Bush DOJ's invocation of the privilege to prevent litigation of rendition cases:

In recent years, federal courts have applied the Reynolds precedent to dismiss numerous cases—on issues ranging from torture, to extraordinary rendition, to warrantless wiretapping—without ever reviewing the evidence. Some courts have even upheld the executive’s claims of state secrets when the purported secrets were publicly available, as in the case of El-Masri v. Tenet.

In that case, there was extensive evidence in the public record that the plaintiff was kidnapped and tortured by the CIA on the basis of mistaken identity, but the court simply accepted at face value the government’s claim that litigation would require disclosure of state secrets. The court dismissed Mr. El-Masri’s case without even evaluating the evidence or considering whether the case could be litigated on other evidence.

When federal courts accept the executive branch’s state secrets claims as absolute, our system of checks and balances breaks down. By refusing to consider key pieces of evidence, or by dismissing lawsuits outright without considering any evidence at all, courts give the executive branch the ability to violate American laws and constitutional rights without any accountability or oversight, and innocent victims are left unable to obtain justice.

That's exactly -- exactly -- what the Obama administration is now doing.

UPDATE III:  At his new Washington Post blog, the tenacious Greg Sargent reports that Sen. Russ Feingold is strongly condemning the Obama administration's conduct in this case:

Senator Russ Feingold is sharply criticizing the Obama administration over its controversial decision to maintain the Bush administration’s position in a closely watched lawsuit involving alleged victims of extraordinary rendition, a decision that generated a storm of criticism yesterday.

“I am troubled by reports that the Obama administration has decided to invoke the state secrets privilege in a case brought by five men who claim to have been the victims of extraordinary rendition,” Feingold said in a statement sent to me by his office, in a rare instance of criticism directed at Obama by a Senator in his own party. . . .

[The DOJ statements are] unlikely to satisfy Feingold, who reiterated in his statement to me that he’s pushing for new legislation to “give better guidance to the courts on how to handle assertions of the state secrets privilege so that the American people can have confidence that the privilege is not being used to shield government misconduct.”

There is no reason to rely on Obama's good character or judgment, particularly since he has demonstrated that it's insufficient.  The same legislation that Democrats claimed to support last year, to restrict the use of the State Secrets privilege, should be enacted to prevent its ongoing abuse.

UPDATE IV:  One of the plaintiffs in the case which the Obama DOJ is seeking to have dismissed is Ethiopian citizen and British resident Binyam Mohamed, who is currently close to death at Guantanamo due to a hunger strike.  It is his case in England, against the British government for its complicity in his torture and rendition, that prompted a British court to conclude that although there was very credible evidence to substantiate his claims of brutal torture, they would not disclose any of the relevant information due to threats from the U.S. to terminate intelligence-sharing agreements with Britain.

On Monday night, Jon Snow on Channel 4 News in London broadcast an excellent report on Mohamed's plight, featuring the heroic work of Mohamed's lawyer, Air Force Lt. Col. Yvonne Bradley.  The report was broadcast the night before the hearing in San Fransisco where the Obama DOJ adopted Bush's state secrets argument.  It is highly worth watching, and as one reviews the full extent of already disclosed facts about what happened here, one can only marvel at how patently frivolous is the Obama DOJ's claim that litigation of this case would risk disclosure of vital state secrets: