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Late on Friday, the Obama Justice Department filed an astonishing document with a San Francisco court. Seeking the dismissal of Jewel v. National Security Agency, a suit brought by persons who had been subjected to warrantless—and thus presumably unlawful—intercepts by the National Security Agency, the Justice Department advanced two arguments. First, it fully embraced the discredited Bush Administration view that by claiming “state secrets” it could simply terminate the lawsuit. This is a position that Senators Obama and Biden both criticized and members of their campaign insisted would never be asserted by an Obama Administration. That promise has now been repeatedly broken. Still more pernicious was a second argument. Directly contradicting the assurances of the legislation’s sponsors that suits against the government could proceed undisturbed, the Obama Justice Department argues that FISA amendments giving immunity to the telecom service providers accidentally granted “sovereign immunity” to the government, shielding it from suits by Americans in American courts.
The doctrine of sovereign immunity exists in two forms—one protecting foreign sovereigns from suits in our courts on the grounds that such suits could interfere with or undermine our relations with those foreign sovereigns. The other protects the government against its citizens, based on the ancient notion that the “king can do no wrong” and therefore cannot be challenged in the courts save with his permission. This is a perfectly fine legal principle—for an absolute monarchy or a totalitarian dictatorship. Democracies, however, have different rules. First among them is the idea that the government is accountable to its citizens. Another important principle is that no right is created without a vehicle for its enforcement. But in its submission on Friday, the Obama Justice Department repudiated these two fundamental principles, instead raising high the banner of tyrannical government.
Why? The reason advanced by the administration is the same on both fronts. The lawsuit, if it proceeded, would “cause exceptionally grave harm to national security,” they say (p. 12). The fact that the telecom service provider has a special relationship with the NSA “would also cause exceptional harm to national security” (p. 16). Vague and highly generalized claims of harm from disclosure of facts which are already a matter of public knowledge are always false. In this case, the Bush-era Terrorist Surveillance Program is already a matter of public knowledge in considerable detail, and the participation of AT&T, as well as other telecom service providers, in that program is already known. Indeed, employees of AT&T have already laid out all the details of the collaboration—right down to the exact address and exact room in which the NSA installed its “black box” that allows it to filter through Americans’ emails and phone conversations without detection, all in violation of criminal law. The claims made by the Justice Department in these filings are histrionic falsehoods.
So what are the real reasons? They fall into two categories. The first is that bureaucrats who masterminded and oversaw the implementation of this program would suffer serious embarrassment by the exposure of their handiwork. The second is that crimes were committed with the authority of the state, and the more these crimes are exposed the more pressure will build for an accounting. Who knows, perhaps some day the Justice Department will actually enforce the law instead of working to subvert it.
The Justice Department suggests that extraordinary secrecy is necessary to protect the country from foreign threats; it suggests that the courts must be closed to citizens seeking to enforce the law against a government that has grown arrogant and bloated with power. These claims ring hollow. The real threat that the Justice Department seeks to combat is a citizenry that is increasingly angered by a national intelligence apparatus that ignores the law. We need a government that fears its citizenry, and not a citizenry that lives in fear of its government.
The courts generally extend deference to government claims of national security concerns. That would be wholly unwarranted in this case. By filing these papers, the Justice Department has seriously damaged its credibility, and still worse, its integrity.
More from Scott Horton:
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
In Havana, the past year has been marked by a parade of bold-faced names from the north — John Kerry reopening the United States Embassy; Andrew Cuomo bringing a delegation of American business leaders; celebrities ranging from Joe Torre, traveling on behalf of Major League Baseball to oversee an exhibition game between the Tampa Bay Rays and the Cuban national team, to Jimmy Buffett, said to be considering opening one of his Margaritaville restaurants there. All this culminated with a three-day trip in March by Barack Obama, the first American president to visit Cuba since Calvin Coolidge in 1928. But to those who know the city well, perhaps nothing said as much about the transformation of political relations between the United States and Cuba that began in December 2014 as a concert in the Tribuna Antiimperialista.
Chances that a Republican man believes that “poor people have hard lives”:
A school in South Korea was planning to deploy a robot to protect students from unwanted seductions.
Nuremberg’s Neues Museum filed a criminal complaint against a 91-year-old woman who completed a crossword puzzle that was in fact a $116,000 piece of avant-garde Danish art.
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“Matt was happy enough to sustain himself on the detritus of a world he saw as careening toward self-destruction, and equally happy to scam a government he despised. 'I’m glad everyone’s so wasteful,' he told me. 'It supports my lifestyle.'”