Glimmers of Bush: Does National Security Trump the Law?

President Barack Obama (WDCpix)

When the Obama administration last week claimed that the executive’s “state secrets” privilege requires dismissal of a case challenging the Bush administration’s warrantless wiretapping program, the move rang alarm bells.

It was the second time that the new administration had asserted “state secrets” to try to dismiss a challenge to a program of its predecessor that is widely believed to have been illegal. In the first case, concerning the CIA’s “extraordinary rendition” of terror suspects, the Obama administration said the program itself was a secret, so the claims of four victims against Jeppesen Dataplan, the Boeing subsidiary that helped the CIA carry it out, had to be dismissed.

Illustration by: Matt Mahurin

Then last Friday, in a case that’s gotten far less attention, Al Haramain Islamic Foundation v. Obama, the Department of Justice filed an emergency motion in the Ninth Circuit Court of Appeals to assert that, similarly, the Bush administration’s domestic warrantless wiretapping program is a state secret, and that to allow its victims access to information that would let them sue the government would endanger national security. Today, the appeals court denied the government’s emergency request to block release of the documents.

The case involves the Al Haramain Islamic Foundation, a Saudi Arabian charity that had an office in Ashland, Oregon until the the Treasury Department in 2004 decided it was funneling money to terrorists and shut it down. But in the process of trying to demonstrate the group’s terrorist ties, the government inadvertently released a classified document to the group’s lawyers that the lawyers say revealed that the government had been wiretapping them without a warrant.

The central issue in the appeal filed last week was whether the state secrets privilege, which allows the head of an executive agency to withhold certain evidence to protect national security, prevails over the requirements of the Foreign Intelligence Surveillance Act passed by Congress, which requires the government to get a warrant before wiretapping. In other words, when the president claims that national security is at stake, does he have to follow the law?

Before this case, no court had ever before decided the question in this context. But Judge Vaughn Walker of the federal district court in San Francisco concluded in July that in enacting FISA, Congress had preempted the state secrets privilege as regards evidence that falls within the purview of the surveillance law. In other words, the president has to comply with FISA and the procedures it lays out for handling classified information; the president cannot invoke the state secrets privilege to conceal the evidence and dismiss the case.

In filing its emergency appeal last week, the Obama administration hoped the appeals court would reverse that ruling. This afternoon, without reaching the merits of the argument, it declined to consider the appeal, ruling that it does not have jurisdiction over the issue at this stage of the case.

That’s a major loss for the government, which had argued in its brief to the appeals court that “the district court’s order threatens to disclose classified national security information over the objection of the Executive and in the face of a determination by the responsible agency that plaintiffs’ attorneys do not have a need to know the classified information.”

It’s a major victory for Al-Haramain’s attorneys, however. They say they need the information to show that their clients were illegally wiretapped and that therefore, they have standing to sue the government. That’s because in a previous case, the Sixth Circuit Court of Appeals reversed a district court’s finding that the National Security Agency’s warrantless wiretapping program was unconstitutional because the plaintiffs — scholars, journalists and nonprofit organizations — could not prove that they themselves had been wiretapped, since all of that information was classified. The court, encouraged by the government, has thus created at Catch -22: only the government knows who it is wiretapping without a warrant; so long as it claims that information is a “state secret”, no one will have standing to sue and the government can never be held accountable for breaking the law.

The lawyers representing Al-Haramain were surprised to see the Obama administration arguing so vigorously for the same expansive view of executive power that the Bush lawyers had asserted.

“I did not expect this from the Obama justice department,” said Jon Eisenberg, a lawyer representing Al Haramain. “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done. They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”

Although the new attorney general has only been in office three weeks, Eisenberg said that the Justice Department lawyers handling the case “have told us quite plainly that the Justice Department’s actions of the past few weeks have been approved at the top.”

Advocates for open government are particularly concerned because the Bush administration had sought to dismiss cases on the basis of the state secrets privilege far more often than did previous administrations. A recent report by the American Constitution Society notes that in its first 6 years in office, the Bush administration raised the state secrets privilege 20 times—28 percent more frequently than in the previous decade. And it used the privilege not just to conceal particular evidence, but to dismiss every case that challenged the constitutionality of a specific government program. ACS authors and lawyers Amanda Frost and Justin Florence found that the Bush administration sought dismissal in 92 percent more cases per year than in the previous decade. That “represents a marked change not only in the number of assertions of the privilege, but also in the degree to which it is aimed at restricting access to the courts,” they wrote.

Organizations such as ACS and the American Civil Liberties Union, which brought the case against Jeppesen challenging the “extraordinary rendition” program, were hoping that the Obama administration would change all that. In responding to questions during his confirmation proceedings, Attorney General Eric Holder specifically promised to “review significant pending cases in which DOJ has invoked the state secrets privilege, and [to] work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.”

So the Obama administration’s legal filing in the Al-Haramain case last week came as a serious blow.

What makes the Al-Haramain case so unusual – and important – is that it’s the only case where the government apparently – by accident — revealed to the target of its investigation that it was being wiretapped.That means it’s the only case where the target of the wiretap, if it can use that classified information, now has the opportunity to hold the government accountable for breaking the law.

Although the Obama administration was not able to convince the appellate court to accept its appeal, it could still try to seek review from the Supreme Court on an emergency basis.

“They understand it’s finally come down to the wire,” said Eisenberg. “If we get access to the document we win this case. That’s why they’re fighting it so aggressively.”

Legal experts emphasize that the implications of the government’s position reach far beyond this particular case.

“It’s important to understand the significance of the state secrets doctrine,” explained Marc Rotenberg, Executive Director of the Electronic Privacy and Information Center. “This is a very powerful and in some respects very dangerous legal theory. The Executive is saying that for reasons we assert that cannot be contested, this matter should not be heard by the judiciary.”

Whether the Obama administration intends to carry this broad view of the state secrets doctrine forward into new challenges that arise, or whether it’s just decided to continue the litigation strategy of its predecessors in cases already pending, isn’t completely clear.

Civil liberties advocates are hoping it’s the latter, but as the Obama justice department continues to press forward these extreme views of executive power in some of the most important litigation concerning potential abuses of the Bush administration, concerns are mounting.

“This is a big deal in terms of the system of constitutional checks and balances,” said Rotenberg. “There are contested matters all the time about presidential authority, but presumably that’s for the courts to decide, not for the executive alone.”

Update: This story has been updated to reflect news that broke since its original publication.