No Comment — November 12, 2009, 1:31 pm

Government to Pay $3 Million in Unlawful Surveillance Suit

Establishing a valuable precedent in a case involving unlawful surveillance and botched state secrets claims, the Justice Department has named its price. Wired reports:

The U.S. has agreed to pay $3 million to a former government worker who accused officials with the CIA and State Department of spying on him with a bugged coffee table. Rather than comply with a court order to provide lawyers in the case with what the U.S. government says is classified information, the government has agreed to settle to end the 15-year-old suit.

A close review of the case suggests that the Justice Department also decided to pay off the plaintiff in order to quash the series of damaging legal rulings issued by the influential judge overseeing the case that would have forced them to disclose the classified information. Those decisions may have a bearing on the “state secrets privilege” that the Bush and Obama administrations have used to try and thwart a high-profile lawsuit in California over illegal wiretapping conducted in the war on terror.

The settlement agreement can be examined here. There are two reasons that the government paid up in this case rather than shouting “state secrets!” First, it ran smack into a prominent conservative judge, Reagan appointee Royce Lamberth, who served as presiding judge of the FISA court from 1995 to 2002. Lamberth smelled something fishy with the government’s state secrecy and immunity claims from the outset, and his inquiries ultimately pressured the government to confess to some serious misrepresentations to the court. Second, the government faces a court order requiring it to turn over to the plaintiff or his attorney certain classified documents, which it considers a horrifying precedent.

The settlement comes in a suit brought by a DEA agent who, correctly, argued he was the victim of illegal U.S. surveillance while serving overseas in Burma. The government tried to brush the claims aside by certifying to the court that a key defendant was a covert CIA agent, and the case could not therefore proceed. Lamberth determined that the government’s certification was bogus because the CIA agent’s role had been disclosed in 2002. The government claims it was an innocent mistake, but not everyone’s buying that account.

The Justice Department’s major concern, however, goes to the judge’s order that classified information be shared with the plaintiff. A Justice lawyer called the decision “an unprecedented departure from the Executive’s exclusive authority to control access to classified information.” In fact, consistent with the shared powers notion of the Constitution, the executive has never exercised “exclusive” control over state secrets. Consider the papers surrounding the negotiation of the Treaty of Algiers from 1793, for instance. Congress asked for the papers, and the White House insisted that they contained state secrets. Congress effectively responded, “Fine, we won’t ratify the treaty until they are produced.” And produced they were. So much for “exclusive” control of state secrets. That pattern held pretty constant for the following two hundred years.

The more immediate concern that the Justice Department has is different: namely that the victims of unlawful surveillance will secure information that will bolster their lawsuit. It’s quite likely that information has been systematically classified with two major objectives in mind, neither of which are legitimate under current law. First, to cover up evidence of the crime, since warrantless surveillance was a felony under FISA. Second, to keep the documents out of the reach of litigants who can use it to make out their case against the government, potentially costing the government much embarrassment and a lot of money. So what’s the value to the Justice Department of getting Judge Lamberth to vacate his order? Now we can quantify it: $3 million. By entering into this settlement, the Holder Justice Department has also fixed the settlement target for dozens of other plaintiffs.

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