Mr. Obama's DOJ embraces Cheney unilateral secrecy powers

Chief Executive Obama's administration has embraced a key element of the Chief Executive Bush's political theories - that of unreviewable, unitary powers in the executive branch, regarding classified materials. In their latest attempts to stop the last remaining investigative route into the Bush administration's illegal domestic wiretapping and surveillance programme, they have asserted that the Executive has the power to declare any materials classified whatsoever, that courts may not have access to these materials, and that the decision is unreviewable and and cannot be bound by any other branch of the government.

From Greenwald, this morning:

The brief filed by Obama['s DOJ] on Friday afternoon [is] arguing that no court has the power to order that classified documents be used in a judicial proceeding... the President [alone] possesses that decision-making power under Article II, and no court order is binding on the President to the extent it purports to direct that such information be made available for use in a judicial proceeding...

...if, as happened here, the President breaks the law, then he can just label the relevant evidence "classified" and refuse to turn it over to a court which is attempting to rule on the legality of the President's actions. ... It's irrelevant that courts rule that the documents should be usable or even that Congress has created all sorts of mechanisms to enable federal courts to use classified information in judicial proceedings... only the President has the power to decide what is done with classified information, and neither courts nor Congress have any power at all to do anything but politely request that the President change his mind. ...

That's the argument which the Obama DOJ is now aggressively advancing -- all in order to block any judicial adjudication of Bush's now-dormant NSA program.

There's more here, over at emptywheel.