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.