Can the federal government engage in surveillance of U.S. citizens without a warrant, without consequences, despite the Fourth Amendment and the Federal Intelligence Surveillance Act? The Bush Administration concluded this question in the affirmative. Its reasoning has never been completely clear, but it appears to have concluded that, although FISA calls such conduct a felony, the executive decides what crimes are prosecuted. This is consistent with the theory of John Yoo and friends, under which the executive knows no apparent limit.
But this theory runs into the problem that FISA also contemplates civil damages for victims of warrantless surveillance. The Bush Administration also fashioned defenses against this risk. It relied heavily on the state-secrets privilege, arguing that the executive was entitled simply to throw down a marker and stop the legal proceedings. Specifically, on matters affected by the state-secrets privilege, lawyers for the Justice Department argued, the claimants cannot offer evidence of matters it deems to be secret, and the courts cannot entertain any such evidence that is offered. While candidates Barack Obama and Joe Biden sharply criticized the state-secrecy claims of the Bush Administration, scholars studying the in-court practices of their lawyers strain to see any difference.
Federal courts, however, appear to be losing patience with the Justice Department’s increasingly flailing claims of state secrecy. Yesterday, Judge Vaughn Walker, a conservative Reagan appointee, became the third federal judge to conclude that at least some aspect of the Bush Administration’s terrorist surveillance program was illegal. He handed the Justice Department a humiliating loss [PDF] in its highest profile state-secrets claim. Walker concluded that an Islamic charity and two lawyers associated with it had been the victims of illegal surveillance by the Bush Administration on the basis of nonclassified information they offered. The opinion suggests rather strongly that classified information not formally taken into account would lead to the same conclusion. The court harbors barely concealed contempt for the Justice Department’s arguments:
Under [the Justice Department’s] theory, executive branch officials may treat FISA as optional and freely employ the [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority. For example, the House Report on FISA noted: “In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive-branch discretion to safeguard civil liberties.”. . . . Perhaps sensitive to the obvious potential for governmental abuse and overreaching inherent in [the Justice Department’s] theory of unfettered executive-branch discretion, defendants protest that “the Government does not rely on an assertion of the [state secrets privilege] to cover-up alleged unlawful conduct.”
The only silver lining in the ruling, from Justice’s perspective, was Walker’s conclusion that individual actors, such as FBI director Robert Mueller, faced no personal liability for the wrongdoing–whatever sanction was ultimately fashioned would be imposed on the government itself.
Notably, Walker deferred to the state-secrets privilege at a conceptual level. He disregarded the sealed evidence previously proffered because it was classified. In fact, he disregarded classified evidence altogether, and proceeded solely on the basis of information in the public sector—what the plaintiffs could learn by their own means from public sources. And he found ample evidence to sustain the charges of illegal conduct—much of it in public admissions by senior Bush Administration officials, crowing about the efficacy of their cherished snooping program.
The case, Al-Haramain Islamic Foundation v. Obama, will serve as a roadmap for future claims under FISA. Judge Walker has recognized the state-secrets privilege while trimming away its obvious abuse in the hands of Justice Department lawyers. The major question is whether they will learn anything from this experience.
I note that Orin Kerr, whose expertise in these issues is considerable, takes issue with some of the press coverage this morning, offering this qualification:
The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.
He’s right that the Justice Department, maneuvering deftly to limit damage in an obviously hostile judicial environment, used the state secrets privilege and other tactics to avoid any definitive ruling on the Bush-era program. It seems to me that the Justice Department’s effective default on the non-classified case had the same import: it did not want to expose an obviously frail (indeed criminal) program to judicial scrutiny. This was a prudent step for counsel in a difficult bind legally. But am I the only person disturbed by the public spectacle of the Justice Department behaving as if it were criminal defense counsel in a case in which it knows its client plainly is guilty of serious wrongdoing? The way the Times and other reports have characterized the case is accurate.