As the days mount in Barack Obama's presidency, the word 'change' has been firmly shelved when it comes down to actual government practice.
Reverting to what looks suspiciously like right-wing Christian fundamentalism, the Obama Administration through the US Justice Department has now argued against same-sex marriage in a 54-page motion to dismiss in the matter of Smelt & Hammer v The United States of America.
Incredibly at Page 28 of the motion the legal argument appears to draw an analogy between same-sex marriage, underage marriage and incestuous marriage (but was careful not to mention polygamous marriage).
Not content with this about-face, Obama's troops are also out there arguing in support of the restrictive use of 'state secrets' legislation when it feels US political interests are threatened, as well as continuing to support warrantless phone tapping.
Jewel v NSA has now been joined by Al-Haramain Islamic Foundation v Obama and the earlier Mohamed et al v Jeppesen Dataplan, Inc., has just developed an extra twist.
With the Obama Administration arguing against a recent ruling on limitations when invoking state secret provisions (the court had ruled that government could not prematurely invoke privilege) and petitioning the court of appeals full panel of judges to rehear an earlier Ninth Circuit Court of Appeals ruling that victims of extraordinary rendition and torture could have their day in court.
The rehearing application hypocritically states in part:
This is one of those few cases warranting review by the Court en banc.
The panel has significantly altered the contours of the military and state secrets privilege – a constitutionally-based means by which the Executive protects critical national security information from disclosure.
The panel's approach is flatly inconsistent with decisions of the Supreme Court, this Court, and this Court's sister circuits on questions of exceptional importance applying the privilege.
We emphasize that the Government's request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege.
As the President made clear two weeks ago, while the state secrets privilege is necessary to protect national security, the United States will not invoke the privilege to prevent disclosure of "the violation of a law or embarrassment to the government."1
The panel has significantly altered the contours of the military and state secrets privilege – a constitutionally-based means by which the Executive protects critical national security information from disclosure.
The panel's approach is flatly inconsistent with decisions of the Supreme Court, this Court, and this Court's sister circuits on questions of exceptional importance applying the privilege.
We emphasize that the Government's request for en banc review is based upon the most careful and deliberative consideration, at the highest levels, of all possible alternatives to relying upon the state secrets privilege.
As the President made clear two weeks ago, while the state secrets privilege is necessary to protect national security, the United States will not invoke the privilege to prevent disclosure of "the violation of a law or embarrassment to the government."1
Full copy of Petition for Rehearing here.
It seems that from American presidential election to presidential election POTUS remains POTUS in the worst sense of this public office.
Update:
In Padilla & Lebron v John Yoo currently before the courts it appears that John C. Yoo, former US Justice Department counsel, former advisor in the President's War Council and author of the infamous Bush-era torture memos, has also unsuccessfully attempted to invoke 'state secrets' to avoid legal scrutiny and litigation. US District Court June 2009 ruling here.
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