The Obama Administration still wants to keep its secrets.
Yesterday, the Justice Department embraced the argument that the state secrets privilege - a fancy phrase denoting the executive branch's common law prerogative to protect classified information - should shut down any litigation against the National Security Agency for its arguably illegal warrantless surveillance program.
The case, Jewel v. NSA, is one part of a complex web of cases brought by civil libertarians against the government. They're challenging the program itself, Congress's grant to telecommunication companies of retroactive immunity, and even the rights of state governments to issue subpoenas relating to NSA activities.
Jewel is perhaps the simplest to litigate; its five plaintiffs are regular folks who contend that their telecom carrier, AT&T, illegally transmitted information about their phone habits to the NSA. Defendants include the NSA and various government official who sanctioned the program.
Pull one strand and the whole weave of surveillance activities will unwind. That's essentially what the government is arguing. Although, thanks to journalists, much is already known about the NSA's domestic surveillance program before it was reauthorized and rewritten, very little is known about the program today. It still exists, albeit in some neutered form.
Reports indicate that domestic communications are monitored
holistically, with computers searching for patterns among the metadata - think
of subject lines in e-mails. The NSA
continues to work with telephone companies; it has enlisted the cooperation of
companies that operate major internet hubs, as a good chunk of foreign internet
traffic flows through routers controlled by American companies. NSA whistleblowers and anonymous officials
have spoken of "thousands" of American citizens whose calls were monitored,
although the NSA and CIA will not cop to those numbers. The program expires at the end of 2009, at
which point the Obama administration is expected to mount a vigorous fight to reauthorize
it in full.
Plaintiffs' Complaint quite clearly seeks disclosure of whether or to what extent the Government may have utilized certain intelligence sources and methods after the 9/11 attacks in order to detect and prevent further attacks. It also seeks disclosure of whether any of the alleged activities (if they exist) are ongoing."
As the government notes, previous courts have given the executive branch the authority to determine whether such information would harm national security, requires judges to give the government the "utmost" deference, and does not even require the judge to assess the nature of the evidence in camera.
"...the DNI has explained that the disclosure of information concerning whether or not plaintiffs have been subject to alleged NSA intelligence activity would inherently reveal NSA intelligence sources and methods."
The government
claims that the program under which the illegal "dragnet" is alleged to have
occurred - the TSP - or the first Bush Terrorist Surveillance Program - is "no
longer operative." But - the government
claims - in order to prove that in court, it would have to disclose information
about what the NSA is doing right now - and darn it, wouldn't you know, that'd
be a secret the government cannot do without.
The Government's privilege assertion also precludes plaintiffs from establishing standing as to any statutory claim that may survive the Government's motion to dismiss. For each cause of action, plaintiffs must establish, as a threshold matter, that they have been "aggrieved"--that is, subject to the alleged action being challenged. Because plaintiffs cannot adduce proof that the content of their communications has been collected by the Government, or that their communications records likewise have been obtained by the Government, the most basic element of every claim--their standing as "aggrieved persons"--cannot be established. It bears emphasis that plaintiffs' allegation of a "dragnet" of surveillance by the NSA--the alleged interception of communication content and records of millions of domestic and international communications made by ordinary Americans, see, e.g. Compl. ΒΆ 7--does not establish their standing. Even if that allegation were sufficient to avoid dismissal on the
pleadings, plaintiffs would be required to demonstrate that they personally have been subject to the alleged communications dragnet, and the information relevant to doing so is properly protected by the state secrets privilege."
I asked a national security lawyer who generally
supports the administration's policies to weigh on this latest assertion of
privilege.
"I
appreciate that the new administration has a lot on its plate in this and
related areas, that it is hampered by some difficulty getting its legal team
confirmed by the Senate, and that it has said repeatedly that it is reviewing
government policy on asserting the state secrets privilege," this lawyer said.
"But all we have to go on now is what they have done so far and this latest
position is disappointing."
That the NSA vacuums up virtually every bit of traffic on US Internet backbone networks can be inferred from expert testimony filed with Hepting v. AT&T. What we don't know anything about are the filters used by the spooks to sift through that mountain of data or the names of the persons or organizations that are targeted, and I believe that is the core of what the government is seeking to protect (the program itself is implemented using off-the-shelf technology). We can only assume the worst, i.e. that the Fourth Amendment has been seriously weakened and that all of our most private communications are compromised. Press reports exist that reinforce these concerns.
If we accept that the program is critically to national security, and it may well be, then the answer to allowing it to go forward while still guaranteeing Fourth Amendment protections is diligent, effective oversight. That was gutted by amendments to the FISA law in 2008. It should be the most significant bargaining chip in renewal negotiations.
One glaring difficulty with the Government's stance is that it extends an umbrella protection to the intermediary telcos that provided data to the NSA. The NSA may be the beneficiary of state secret laws. I don't believe it for a second, as "state secrets" is a common law concept and we live in a nation of legislated laws, last I heard. But suppose the NSA is so protected. Why would its state secret penumbra extend to the telcos? We read during the Inauguration how workers at Verizon were rifling Obama's Blackberry records last year. Emboldened by state secret protections designed for the Government's benefit, telcos and their employees could easily steal and benefit from selective disclosure of subscribers' personal information including recordings of conversations, transcripts, and calling records. How can AT&T or Verizon rightly invoke state secrets as a protection? That would defy the very meaning of _state_ secrets.
The problem is, so many of the lawsuits are against the NSA -- an easy target for libertarians -- and so few are against the telcos themselves. In California, the ACLU lawsuit is more cleverly devised. It invokes a state law against telco disclosure of personal calling records without due process. In this case, it doesn't matter that the Obama Administration is making the Bush Administration's policies its own. It doesn't matter that they protect the NSA, despicable though that may be. AT&T and Verizon, the defendants in the California case, purely and simply violated state law. The moment they did this, they became legitimate targets of subscriber lawsuits. The NSA may be protected (or not), but the telcos definitely are not. I wrote the state law and I can testify that it was precisely this type of situation -- the telcos benefiting by the sale of customer data -- that it was written to prohibit. Eat that, US Justice Department. You really disappoint.
Meet the new boss.
Same as the old boss.
1) "'state secrets' is a common law concept and we live in a nation of legislated laws, last I heard"
What? Common law is law too, sir.
2) The state secrets privilege could apply to the telecom state law cases too. It is a privilege of the executive to intervene in any case and ask the case to be dismissed because allowing it to go forward would reveal state secrets.
I can't help but wonder if the Justice Department attorneys arguing these cases are some of the holdovers from the Bush administration. It does not compute that Obama would do such an about face on the issue of warrantless wiretapping. Wishful thinking on my part, I guess.
Our founding fathers never intended that our system of government would devolve into the quasi-dictatorship it has become. The US President has more power than any monarch in history. It seems the difference between our government and any other authoritarian regime in history has become a matter of semantics alone.
What information could possibly be so important that we are willing to upend the system of checks and balances and institute absolute executive power in the attempt to keep it from seeing the light of day? For all practical intents and purposes, the executive has undermined the rule of law to the extent that there is now no barrier between the fragile republic we have become and the advent of an out-and-out dictatorship. In relatively short order the supreme goal of terrorism has been achieved. Our fear has lead us to undermine the very principles that set us apart as a country.
They say that this country is unique in the world because it is based on an idea of freedom. Perhaps America was never anything more than this idea imperfectly implemented. I fear that the idea may be floating free and away - ever more remote from the machinery of government - as evidenced by the machinations surrounding state secrets privelege. Perhaps America is, in fact, the dream deferred - not the dream itself. Can tyranny ever be defeated?
It is clear Mr. Obama does not object to an immensely powerful Administration wiretapping without warrants. It is simply that Mr. Obama objects to a Republican Administration wiretapping without warrants. See the difference? Yeah, me neither.