No Comment — December 17, 2009, 11:53 am

More Justice Department Chicanery in a State Secrets Case

Yesterday I discussed the the Jeppesen DataPlan case involving the extraordinary renditions program. As that case was being argued, Justice Department lawyers also appeared before the chief district court judge in San Francisco, Vaughn R. Walker, in a parallel case. In Shubert v. Obama, four Brooklynites are suing with claims that they were subjected to illegal surveillance under a Bush administration program that directed data-mining in collusion with internet service providers and telecommunications firms. The Foreign Intelligence Surveillance Act requires a warrant for precisely the activities that the Bush Administration undertook, making warrantless surveillance a felony. As we now know, Bush administration lawyers could be found to sanction this, but senior figures in the department threatened to resign—and some apparently did resign—over the blatant criminality of the program.

The Shubert suit was originally filed in the Bush years, but the Obama Justice Department “inherited” the case and has pursued tactics identical to those of its predecessor. (As Mike Isikoff notes, the Holder Justice Department even used the same words in opposing the suit.) The case marshals a great deal of data to establish what went on, including the testimony of engineers who witnessed the installation of “black boxes” by the NSA providing the physical capacity for the warrantless surveillance, and a series of scientific papers discussing technical aspects of the program. There is no doubt that other nations around the world already know in great detail how this system works, and indeed some have duplicated it to spy on their own citizens. There is also no doubt that the spies and terrorist organizations that are particular targets of the program have a good understanding of the program. In claiming “state secrets,” then, the government’s principal object must be to keep it secret from the American public.

In prior administrations, a published leak was candidly acknowledged as putting an end to the claim of “state secrets.” The government might, of course, attempt to identify and bring charges against the leaker, but it would not persist in the counter-factual assertion that the purported “secrets” were still secret. Not so in the Shubert case, however. The Justice Department is making blanket (and totally incredible) denials that the publications of all the details are valid, and threatening the judge for even daring to read them. Here are the arguments of Justice Department lawyer Anthony Coppolino as reported in the Daily Journal (sub. req’d)(emphasis added), the leading newspaper of the California bar:

On Tuesday, Coppolino said that having to litigate the case to prove that such “dragnet” surveillance did not occur would threaten national security and that the case should be dismissed based on the state secrets privilege. He issued a sort of warning to Walker, who has tried to proceed on only public information in another challenge to the Terrorist Surveillance Program. If Walker makes findings of fact based on information the government will not confirm or deny, Coppolino said, the judge himself gives certainty to terrorists about U.S. intelligence methods.

“I can’t see why a judge would want to do that because of the harm that could result,” he said.

Coppolino appears to be suggesting that if the judge even takes a look to see what sort of surveillance was going on, he’ll be aiding the enemy. This reeks of Dick Cheney off his meds, and it is a comment completely unworthy of a federal prosecutor.

In his magisterial study, Political Justice, Otto Kirchheimer reviews the assault on the independence of the judiciary in wannabe authoritarian states in Europe between the wars. One of the first sure signs of authoritarianism was consistently a change in the relationship between prosecutors and judges—the prosecutors took the upper hand, orchestrating the courses of cases and threatening judges when they got in the way of the state’s objectives. The Justice Department is entitled to a zealous advocate to present its views in the courtroom. It is not entitled to someone who attempts to bully a judge.

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