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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.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
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.
Years ago, I lived in Montana, a land of purple sunsets, clear streams, and snowflakes the size of silver dollars drifting through the cold air. There were no speed limits and you could legally drive drunk. My small apartment in Missoula had little privacy. In order to write, I rented an off-season fishing cabin on Rock Creek, a one-room place with a bed and a bureau. I lacked the budget for a desk. My idea was to remove a sliding door from a closet in my apartment and place it over a couple of hastily cobbled-together sawhorses.
Amount of U.S. military aid given to the government of El Salvador each minute during the 1980s:
A team of European sexologists reported that 40 percent of Italian couples were not having sex, due in part to Italian men’s declining sex drive and growing predilection for prostitutes and cybersex.
Telecommunications company AT&T agreed to buy Time Warner for $85.4 billion in a bid to find new ways to reach consumers, and hackers took control of Internet-connected cameras and baby monitors to overwhelm the routing company Dyn with traffic, causing worldwide disruption to outlets such as Netflix and Amazon.
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"She never thanked me, never looked at me—melted away into the miserable night, in the strangest manner I ever saw. I have seen many strange things, but not one that has left a deeper impression on my memory than the dull impassive way in which that worn-out heap of misery took that piece of money, and was lost."