4. Cass Sunstein: Widely thought to be the president’s most powerful legal adviser. Sunstein defended and may have advised Obama on his breach of his 2008 promise (as senator) to filibuster any new law that awarded amnesty to the telecoms that illegally spied on Americans. This was Obama’s first major reversal in the 2008 presidential campaign: he had previously defended the integrity of the Foreign Surveillance Intelligence Act against the secret encroachment of the National Security Agency (NSA).
At that moment, Obama changed from an accuser to a conditional apologist for the surveillance of Americans: the secret policy advocated by Dick Cheney, approved by President Bush, executed by NSA Director Michael Hayden, and supplied with a rationale by Cheney’s legal counsel David Addington. In his awkward public defense of the switch, Obama suggested that scrutiny of telecom records and their uses by the inspectors general in the relevant agencies and departments should be enough to restore the rule of law.
When it comes to national security policy, Sunstein is a particularly strong example of Bush-Obama continuity. Though sometimes identified as a liberal, from early on he defended the expansion of the national security state under Cheney’s Office of the Vice President, and he praised the firm restraint with which the Ashcroft Justice Department shouldered its responsibilities. “By historical standards,” he wrote in the fall of 2004, “the Bush administration has acted with considerable restraint and with commendable respect for political liberty. It has not attempted to restrict speech or the democratic process in any way. The much-reviled and poorly understood Patriot Act, at least as administered, has done little to restrict civil liberty as it stood before its enactment.” This seems to have become Obama’s view.
Charity toward the framers of the Patriot Act has, in the Obama administration, been accompanied by a consistent refusal to initiate or support legal action against the “torture lawyers.” Sunstein described the Bush Justice Department memos by John Yoo and Jay Bybee, which defended the use of the water torture and other extreme methods, in words that stopped short of legal condemnation: "It's egregiously bad. It's very low level, it's very weak, embarrassingly weak, just short of reckless." Bad lawyering: a professional fault but not an actionable offense.
The Obama policy of declining to hold any high official or even CIA interrogators accountable for violations of the law by the preceding administration would likely not have survived opposition by Sunstein. A promise not to prosecute, however, has been implicit in the findings by the Obama Justice Department -- a promise that was made explicit by Leon Panetta in February 2009 when he had just been named President Obama’s new director of the CIA.
As head of the president’s Office of Information and Regulatory Affairs, with an office in the White House, Sunstein adjudicates government policy on issues of worker and consumer safety; yet his title suggests a claim of authority on issues such as the data-mining of information about American citizens and the government’s deployment of a state secrets privilege. He deserves wider attention, too, for his 2008 proposal that the government “cognitively infiltrate” discussion groups on-line and in neighborhoods, paying covert agents to monitor and, if possible, discredit lines of argument which the government judges to be extreme or misleading.
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