In the 2008 presidential campaign, both Barack Obama and Joe Biden criticized the Bush Administration’s historically unprecedented invocation of state security concerns to block lawsuits challenging the legality of its surveillance. They promised new procedures that would “tighten up” the “problem” of overreaching claims of secrecy. In time, the Justice Department instituted a new review policy, setting internal standards, requiring a high-level internal review, and promising to present a packet for in camera review by the judge involved who would make the final call. That sounded good, and the suggestion that the government would abide by a judge’s review was more accommodating than the posture Bush-era attorneys general assumed—insisting that judges shouldn’t be in this business at all, since only officers of the executive branch had a good feel for such matters.
In practice, the Obama Administration’s invocation of secrecy is at least as aggressive as its predecessor’s, and sometimes seems even more aggressive. Late on Friday, Attorney General Holder asked a district court judge in California to throw out a suit challenging government surveillance operations. It appears to be the first full-fledged case based on the new policy. Here’s Jake Tepper’s report for ABC News:
The Obama administration invoked the controversial “state secrets” privilege again on Friday, arguing that if U.S. District Judge Vaughn Walker were to permit a legal case against the government to proceed, he would be putting national security at risk. Attorney General Eric Holder said in a statement about the case, Shubert et. al v. Obama, that “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”
The case is a class action suit brought by four Brooklynites alleging that the Bush administration engaged in wholesale dragnet surveillance of ordinary Americans in which they were unjustly caught because they regularly made phone calls and sent emails to individuals outside the U.S., specifically in the United Kingdom, France, Italy, Egypt, the Netherlands, and Norway. Obama administration officials argued that even addressing or attempting to refute the plaintiffs’ claim would require the administration “to disclose intelligence sources and methods, or the lack thereof.”
The government’s papers can be examined here. The government tells us that if it were to answer the complaint, it would have to disclose information that would do “exceptionally grave harm to national security.” In reasoning so absurd that it would force a smile from Kafka, the government claims that disclosing whether the plaintiffs have standing to sue (because they were affected by an intelligence dragnet) would require disclosing the methods used in the dragnet system. In other words, the government says the victims of its unlawful snooping are not entitled to know that they are victims of unlawful snooping. It also says it cannot be forced to acknowledge whether telecommunications service providers have collaborated in this process—although the Justice Department has already openly acknowledged that they do in papers filed just a few weeks ago. Essentially, the Justice Department’s brief amounts to a massive “trust us.”
But why should we? In view of the well-documented track record of misrepresentations and downright sophistic legal arguments the Justice Department has made over the past seven years in its efforts to avoid judicial review of the NSA’s snooping programs, the “trust us” appeal is wearing very thin.
The Schubert suit is about accountability, including the accountability of figures at the Justice Department who authorized the illegal sorties into the private lives of millions of Americans. It focuses on a program that the NSA ran with White House authorization which was so absurdly illegal that even some senior Bush Justice Department figures resigned rather than authorize it. Before the first Bush-era FISA amendments, the program was almost certainly felonious. Holder and his senior lieutenants share their predecessors’ strong aversion to anything that would embarrass the department and would expose its past misconduct. But the consequence of this attitude is a Justice Department, which, rather than enforce the criminal law, has set itself up as a criminal defense law firm representing government clients.
The use of state secrecy notions to mask criminal conduct is a serious matter that has badly corrupted the Justice Department. And the Schubert litigation is hardly the only instance. The last major case discussed in this column, the Binyam Mohamed litigation in England’s High Court, followed exactly the same concept. In that case, the subject had been brutally tortured while in the hands of the CIA. Classified information furnished by the CIA to British intelligence was received by the court in order to validate Binyam Mohamed’s claims. The court, noting that a serious crime had obviously been committed, pushed for and received a commitment from prosecutors to investigate the matter. It also ultimately decided that the materials would have to be made public notwithstanding the state secrecy claims advanced by the government. In the Binyam Mohamed case, the United States advanced exactly the same arguments as in the Schubert case—and it was equally clear that the real motivation for the government was to cover up evidence of criminal conduct.
The tendency of these cases is clear: towards ever more sweeping invocations of state secrecy, designed time and again to disguise the government’s warrantless and unlawful invasion of the privacy of its citizens or to cover up evidence of serious crimes such as torture, assault, and kidnapping. Any hopes that the Obama Administration would at least engage in some modest retrenchment have now been dashed. That leaves the issue in the hands of the courts. Up to this point, they have largely bought in to the government’s “trust us” mantra–but what the situation requires is serious inquiry and a healthy dose of skepticism.