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Obama Administration Accused Again of Concealing Bush-Era Crimes

Listening in on attorney-client conversations is "unlawful and unconstitutional," according to Obama. So why is the Justice Department arguing in favor of the practice?

President Obama promised to usher in a new era of government transparency when he was sworn into office nine months ago.

On January 21, Obama signed an executive order instructing all federal agencies and departments to "adopt a presumption in favor" of Freedom of Information Act (FOIA) requests and promised to make the federal government more transparent.

"The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed or because of speculative or abstract fears," Obama's order said. "In responding to requests under the FOIA, executive branch agencies should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public."

But since that time, the Obama administration has sought to conceal information in several high-profile court cases, in an effort that civil libertarians say amounts to covering up crimes committed by the Bush administration.

Last week, in a federal courthouse in New York, Obama's Justice Department attorneys again argued in favor of secrecy. The case involved 23 lawyers representing detainees at Guantánamo Bay who alleged in court papers that they were targets of the Bush administration's so-called Terrorist Surveillance Program(TSP), an initiative operated by the National Security Agency (NSA) that Obama called "unlawful and unconstitutional" during his presidential campaign in 2007.

"Our work with our clients may have been deeply compromised by illegal surveillance carried out by the last administration," said Shayana Kadidal, senior managing attorney of the Center for Constitutional Rights (CCR) Guantánamo Global Justice Initiative, a civil rights organization. "The new administration has no legal basis for refusing to come clean about any violations of attorney-client privilege by the NSA."

Kadidal told Truthout that he could not describe details of the specific incidents that led CCR attorneys to suspect that their privileged communications were intercepted by the government. The plaintiffs in the case argue that listening in on the phone calls of lawyers who represent Guantánamo prisoners is a violation of attorney-client privilege. Kadidal could not go into detail because he wanted to avoid violating the same privilege.

The lawsuit centers around the Bush administration's surveillance programs, specifically the TSP, which was revealed by The New York Times in 2005. In defending the warrantless spying activities conducted by the NSA, the Bush administration said the TSP only allowed surveillance of electronic communications when one party is outside the United States and one party is suspected of being "a member or agent of al Qaeda or an associated terrorist organization," according to a letter from then-Attorney General Alberto Gonzalez.

The TSP was not administered or overseen by the special court set up by Congress to review secret surveillance activities. The Foreign Intelligence Surveillance Act (FISA) established the court as a check on the executive branch's power.

Under the TSP, the special FISA court was sidestepped, with shift supervisors at NSA - not judges in a courthouse - deciding who was an appropriate target for surveillance.

Whistleblowers have reported widespread abuse of this power. According to reports and documents, the NSA spied on UN Security Council members in the run-up to the Iraq war. Whistleblowers say the NSA monitored the personal calls of aid workers, journalists and active-duty soldiers serving in Iraq ( video). Technology expert Mark Klein says that the NSA was collecting massive amounts of data traffic that passed through a major data hub in San Francisco.

Lawyers for the prisoners held after the 9/11 attacks have particular reason to be concerned about surveillance, because their communications fit perfectly with targets specified by the Bush administration. Their clients are suspected terrorists or are associated with suspected terrorists calling into the United States.

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