Are Federal Officials Above the Law?

by Jacob G. Hornberger
Apr. 04, 2010

A federal judge’s ruling in a case challenging the Bush administration’s infamous and illegal domestic surveillance case will likely demonstrate, once again, the hypocrisy and deceit of Barack Obama and his merry band of liberal statists.

When Obama was a presidential candidate, he emphasized to American voters that President Bush’s warrantless surveillance of Americans was “unconstitutional and illegal.”

But once Obama got into office, he silenced his tune, especially in lawsuits that were brought by victims of this criminal action. Like Bush’s Justice Department, Obama’s Justice Department took the position that people’s lawsuits should be dismissed on grounds of “national security” because, they said, if such cases were allowed to proceed, national-security secrets would be revealed.

Yeah, such secrets as the identities of federal agents who violated federal criminal statutes as well as the identities of the federal higher-ups who ordered them to do so! Can’t you just see the entire nation collapsing if information like that were to be disclosed to the public?

How convenient is that? All one has to do to protect federal criminals is simply cite the magic term “national security” and all the criminal dirt is swept under the carpet. Too bad Richard Nixon and the other Watergate conspirators didn’t claim “national security” to keep their criminal wrongdoing secret. Or did they?

In any event, this week a federal judge in one of the surveillance cases declared Bush’s surveillance scheme unlawful, a ruling that places Barack Obama and his Justice Department in an interesting position.

Do they let the ruling stand? Doing so would be consistent with Obama’s campaign position, which mirrored that of the judge.

Or do they appeal the ruling, thereby exposing, once again, the rank hypocrisy of the Obama administration?

Of course, all this is occurring in the context of a civil suit. The question with respect to the criminal-justice system is: Why isn’t the Justice Department securing federal grand-jury indictments against federal officials who, everyone concedes, violated federal criminal statutes?

After all, the Justice Department is always overeager to enforce such stupid laws as antitrust, insider-trading, and possession and distribution of illicit drugs against the American people. Why do federal officials who committed felonies with an illegal surveillance program get a pass? Are federal officials considered better than ordinary Americans?

For once, the Obama administration should do the right thing. Not only should it not appeal the adverse ruling in the surveillance case, it should also take the side of all other victims of such illegal conduct, arguing that they are entitled to full relief in the courts. If Bush, Cheney, and any their cronies wish to intervene in such suits to defend their illegal scheme, so be it, but this would be a good place for Obama to finally begin breaking away from Bush’s massive infringements on civil liberties.

Equally important, Obama’s Justice Department should initiate a federal grand jury investigation into the entire illegal surveillance scheme, subpoenaing all the records of those who committed the offenses and all the records showing who was victimized. Grand jury indictments and federal criminal prosecutions should ensue. What better opportunity to show that no one, not even powerful and influential federal officials, is above the law?

Jacob Hornberger is founder and president of The Future of Freedom Foundation. Send him email.