Lawyers Allege Ongoing ‘Dragnet’ Surveillance

By
Friday, November 13, 2009 at 6:00 am
Attorney General Eric Holder (WDCpix)

Attorney General Eric Holder (WDCpix)

On October 30, the Justice Department for the first time applied its new “state secrets” policy to a case charging the government with breaking the law. Open government advocates hoping for a significant change in the government’s stance toward secrecy in national security cases were sorely disappointed. Attorney General Eric Holder said that in the case of Shubert v. Obama — a class action filed in 2007 claiming that the National Security Agency has an ongoing dragnet surveillance program spying on the telephone and e-mail communications of ordinary Americans — the government would do the same thing it’s done repeatedly in the past: it would move to dismiss the case, because even to respond to the charges would endanger national security by revealing sensitive “state secrets.”

The state secrets privilege allows the government to ask a court to dismiss a case filed against it by claiming that merely allowing the case to move forward in court would reveal government secrets and jeopardize national security. It’s frequently used by the Justice Department in cases alleging warrantless wiretapping, “extraordinary rendition” and abuse of detainees by U.S. officials has angered open-government advocates, who claim that the Bush administration, and now President Obama, is using the evidentiary privilege to conceal government wrongdoing.

[Law1]Those concerns led Holder in September to announce a new policy that he said would limit the Justice Department’s reliance on the state secrets privilege. When he asked the federal court in San Francisco to dismiss the Shubert case in October, Holder said he was asserting the privilege in accordance with that new policy, after “following a careful and thorough review process” and “only because I believe 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.”

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” Holder insisted, adding that “we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.”

Because that information is filed with the court under seal, however, it’s impossible to know whether the government’s reasons are legitimate. That decision will be made by Judge Vaughn Walker, the federal judge in the Northern District of California who’s presiding over this and several other pending cases that the government also claims involve “state secrets.”

But lawyers and advocates for government transparency were dismayed that the Obama administration would even assert the privilege in the Shubert case after promising to severely restrict its use.

“What they’re saying is, ‘because of state secrets, we can’t tell you what the program is,’” said Ilann Maazel, a lawyer representing Virginia Shubert and the three other Brooklyn residents named in the the case who claim the government has been wiretapping them without a warrant. “There’s no limit to the state secrets privilege in their view. There’s no law they cannot violate that implicates national security in their view. Their view is, ‘just trust us.’ ”

Maazel is hardly the only one disappointed with how the Obama administration has used the privilege so far.

“The DOJ continues to embrace the very same “state secrets” theories of the Bush administration—which Democrats generally and Barack Obama specifically once vehemently condemned—and is doing so in order literally to shield the President from judicial review or accountability when he is accused of breaking the law,” wrote Salon blogger and constitutional lawyer Glenn Greenwald after the Justice Department moved to dismiss the Shubert case.

Daniel Metcalfe, a former Justice Department official and now Executive Director of the Collaboration on Government Secrecy at American University’s Washington College of Law, also thinks the new administration’s record on the issue overall has been disappointing.

“On the state secrets privilege as well as other transparency issues, the Obama administration has an easy act to follow, in that the Bush administration was so extremely secretive across the board,” he said. “But from early on, specifically as of February 9 when the Obama administration began following the Bush administration’s state secrets position in the case of Mohamed v. Jeppesen Dataplan,” a lawsuit challenging the government for its role in torture and extraordinary rendition, “open government advocates have been quite alarmed,” said Metcalfe. Although he acknowledged that it takes time for a new administration to develop its own policies, “the Obama administration’s eventual state secrets policy issuance of September 23 has done very little to assuage these growing concerns.”

The Collaboration on Government Secrecy gives President Obama a “D” on its secrecy/transparency scorecard for his use of the state secrets privilege so far. Metcalfe added that the Justice Department still has not completed a promised review of the cases where the government has invoked the state secrets privilege to dismiss them. The new state secrets policy announced in September did not mention that review.

The problem isn’t only that Holder wants to ues the privilege once again to dismiss a case that challenges government conduct. As Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists has pointed out in his blog, the government may not even be following all aspects of its new policy.

Part of that policy, announced in September after months of delay, attempts to respond to the concern that the state secrets policy can be used to conceal government lawbreaking. The new policy requires more thorough review by senior Justice Department officials, including the Attorney General himself. But it also says that if the Attorney General believes the case “raises credible allegations of government wrongdoing,” he’s supposed to refer those allegations to an Inspector General for further investigation.

Shubert v. Obama claims the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and internet communications without a warrant and without any suspicion that the targets have done anything wrong. It would all sound very sci-fi — and therefore, perhaps, not credible — if there weren’t strong evidence to back it up. That evidence was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA. Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds. The matter is still pending in the same federal district court in California where the Shubert case is filed.

After Klein’s testimony became public, another whistleblower came forward, this time a former NSA Intelligence Analyst. In January, Russell Tice told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

But is that enough evidence to require the Attorney General to refer the claims to an Inspector General for investigation, as the new policy requires? It’s impossible to know, because the new policy doesn’t say how the AG should decide which claims are “credible.”

Asked whether the Justice Department referred the matter to an inspector general, spokesperson Tracy Schmaler told TWI that she “can’t comment specifically” on that question, adding: “just to be clear, there is no automatic referral in the policy.”

As for whether guidelines or regulations govern the credibility determination, Schmaler said she couldn’t go beyond the statement made by the Attorney General when he announced his application of the state secrets privilege to the Shubert case.

Ultimately, critics say the problem with even the new state secrets policy is that it leaves too much discretion to the executive to decide what information is so sensitive that it cannot be disclosed even to a judge behind closed doors – and what constitutes a credible allegation against the executive branch that’s worth investigating. The Foreign Intelligence Surveillance Act provides various ways that the government can produce information to a court and have it still remain secret, but allow a legal challenge to government conduct to proceed.

The Obama administration’s use of the state secrets privilege to try to dismiss the Shubert case “demonstrates that we can’t count on the executive to rein itself in when it comes to the state secrets privilege,” said Kevin Bankston, an attorney with the Electronic Frontier Foundation working on the Jewel case.

Although the debate over the privilege sounds technical, what’s at stake isn’t just courtroom procedure. It’s whether the government can get away with engaging in illegal conduct simply by claiming that the evidence is too sensitive to reveal.

“There is not a single person in the United States government who has disavowed the dragnet program, who has said that it’s stopped,” said Maazel, referring to the claims in the Shubert case. Although the government has said that warrantless wiretapping under the Terrorist Surveillance Program has stopped, the Obama administration has not said that warrantless wiretapping isn’t ongoing under some other program. “We have every reason to believe that the copping and splitting in San Francisco is continuing,” said Maazel, referring to the way the government allegedly duplicates messages for monitoring purposes.

Experts note that the state secrets privilege actually encourages illegal conduct in national security matters, since the government knows it can be invoked as a shield. “The basic nature of the state secrets privilege always has been that it can remove a disincentive that the government ordinarily would have against engaging in highly questionable, if not outright wrongful, conduct,” said Metcalfe.

Regardless of how Judge Walker rules in these cases (they’ve all be transferred to his court), the issue isn’t going away. Democrats in Congress have introduced legislation that would keep courts from dismissing cases based solely on the government’s assertion that the case would reveal state secrets. Last week the House Judiciary Committee approved the bill introduced by Rep. Jerrold Nadler (D-NY), after Nadler called the government’s use of the privilege “the greatest threat to liberty at present.”

President Obama, for his part, has avoided taking any position on it. In fact, when a House Judiciary subcommittee in June held a hearing on the proposed legislation, the Justice Department did not even send a witness to testify about its use, saying only that the policy was still under review.

A justice department attorney is expected to appear at a conference next week on the subject being held at Washington College of Law at American University, and will surely be asked about the administration’s views. Metcalfe, who’s convening the conference, hopes the department will also be prepared to report the results of the litigation review that Holder said the department was undertaking in February. That review could lead the government to change its position on asserting the privilege in some pending cases.

Ultimately, if Congress doesn’t pass legislation on the state secrets privilege, the matter could end up in the Supreme Court, which first recognized this controversial executive privilege back in 1953. The court dismissed that case, brought by widows of civilians killed in a military plane crash, because the government claimed it would reveal military secrets. But when the accident report was finally declassified in 2000, rather than military secrets, it revealed gross military negligence that would have been damning evidence against the government in the case. (The case settled in 1953 for $170,000.)

“The Supreme Court hasn’t heard a state secrets case since 1953,” said Maazel. “There’s no question they will have one sooner rather than later.”

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18 Comments

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Hawaiianstyle
Comment posted November 13, 2009 @ 1:20 pm

State secrets act. Is this like the Patriot Act? Well but deceptively named.

It should be called the, “PREVENTION OF GOVERNMENT PEOPLE'S EMBARRASSING AND ILLEGAL SECRET ACTIONS FROM BECOMING PUBLIC ACT” Or, maybe the “ILLEGAL SECRET ACTIONS IMMUNITY ACT”.

Someday my hope is that we will have a government that doesn't just say its going to be transparent, it really is. That will be the day we start to trust our Government again. What????!!!

Is is true that a majority of Americans don't trust their government and don't trust Congress? Maybe the next POLITICIAN should run for election not on “Change you can believe it”, but “Restoring Trust in the government.”

I always was idealistic…


Name
Comment posted November 13, 2009 @ 3:20 pm

The number of posts here indicates that this isn't really even news to most of us who pay attention. Kudos to you Ms. Eviatar for keeping this topic in the forefront.

It really is quite apparent that our 'new' government has had absolutely NO change of stance since the election. We are all subject to illegal searches at the whim of the executive, without recourse. Our only hope is that judges such as Mr. Walker can right the ship with respect to those seeking remedy in court on our behalf, and not dismissing the cases, as our 'leaders' would have it.


triathlon
Comment posted November 24, 2009 @ 2:38 pm

A WEB PAGE PROTOCOL !!

Now, all these webmasters should get together and create a web page protocol, on the basics were not talking about all the fancy smacy stuff, thus the facts ma, or just the basics;

(Site Address)
Email Address:
Country:
Language:
Password/Recovery Word/Membership Name /Username/:
Confirm Password:
Phrase/ Secret Question:
Secret Question Answer:
Security Code:
Zip-Code:

1. Now, above is pretty much the information they all want to register, but which is it; [Password/Recovery Word/Membership Name /Username/:] They should come to agreement just what to call the name you enter for your comments, and they should also inform the user to use a [Pen Name] or you can use what ever term they want to use [Not Your True Name].

2. Is it a [Phrase/ Secret Question:] or a secret question that they want, it makes it easy if you can use the same one on all the sites, either a phrase or a secret question, or you have to start having a very long list.

3. The Log In, Log Out should be in the upper right hand corner for all sites instead of the user looking all over the computer screen to find it, it should be a protocol. The Log In, and Log Out should be the only one on the site period, the user should then have total and complete access to every article on the site, a password is unnecessary as the site recognizes the [IP] user name is all that’s required, it should be a protocol.

4. The author posting any article on the site should be required to post their return e-mail address at the bottom of the article, if they had they backbone to write it, then they should have the backbone to take the heat for it from readers, it should be a protocol.

5. The person running the site should take heat for running their site too, and at least at the bottom of his article section post; [Your posts are welcome in the Forum. You can send me a private tip by clicking on the “Contact” button in the upper right.], The Contact button can be under the Log In / Log Out, it should be protocol.

6. Now, the Name (Required), Mail (Will not be published, required), now first of all it’s E-Mail Address, not Mail so it should state E-Mail Address Required. Now if it’s really necessary, which it isn’t then either put it at the top or bottom of the comment space, now let’s understand that is just an extra [Unnecessary Step], the user already has signed in, once you type in the first letter of your users name that should let the site know the comment is ended or just have [End Comment] at the bottom of the box, it should be a protocol.

7. The comment section, there should be some standard set [500, 1000, 2000, unlimited] characters, the present system is nuts, so they should have a standard character amount, it should be a protocol.

8. When you complete your comment section it should automatically show you the comment you made and should request a [Confirm/Review] of the comment, with a [Submit/Confirm/Enter] comment after the review screen, it should be a protocol.

9. The [Country/Language], should also be handled by the [IP], once you have given the site that information, you may be in the Empire but only speak Spanish, but with the [IP] it should respond in [Spanish], it should be a protocol.

10. When you Log-Out the site should have a space or in the middle of the screen, have [A. You many now Log Out, B. Sign In Again, C. Go Back to the page you were on, D. Go to the Homepage]. It gives you a choice as what you want to do, and if you choose to Log Out it should state Good Bye you are now logged out, with a follow up of You may now close your browser, [leave the internet if you so choose] it should be a protocol.

11. Moderators are a good idea they keep the discussion civilized and focused, and the [BBC] British Broadcasting Company have the best on the internet, they work with the blogger with the intent of NOT baring, individuals from sites for life, and eternity, sending posting back to the bloggers with recommendations for resubmission. They also keep the discussion civilized stopping personal attacks between bloggers, but allowing attacks upon the comments themselves without the use of vise or profane language, [BBC] Moderators upgrade the discussion.

12. The worse sites are American based sites, without moderators, or at times with moderators, which are primarily Liberal Democratic Sites, its there way or the highway, they bar for life and eternity if the blogger does not agree with their way of thinking. You enter a Democratic Liberal Site in America at your own risk, its generally a bar room knife fight, with no holds barred, with vile profane personal attacks the norm, with the site sponsors generally joining in. On an American Republican Site they are more open to free speech and taught not that they agree but at least they know what you are thinking. The Democratic Sites are about FIGHTING enforcers; the Republicans are more about Finessing, Con Men. A Democratic will steal your hard earned money and waste it on crazy half baked [not carefully taught thru] programs and ideas, Democratic not only kill the goose that lays the golden eggs they eat it, a Republican will let you have your hard earned money con you out of it, along with having you on a payment schedule, of a dollar down and a dollar a week, a Republican just keeps collecting the eggs, and will not let the goose die without at least trying to produce another generation of golden egg laying geese.

There should be Web Page Protocols, [IMHO] In My Humble Opinion.

HERCULE TRIATHLON SAVINIEN


triathlon
Comment posted November 24, 2009 @ 7:38 pm

A WEB PAGE PROTOCOL !!

Now, all these webmasters should get together and create a web page protocol, on the basics were not talking about all the fancy smacy stuff, thus the facts ma, or just the basics;

(Site Address)
Email Address:
Country:
Language:
Password/Recovery Word/Membership Name /Username/:
Confirm Password:
Phrase/ Secret Question:
Secret Question Answer:
Security Code:
Zip-Code:

1. Now, above is pretty much the information they all want to register, but which is it; [Password/Recovery Word/Membership Name /Username/:] They should come to agreement just what to call the name you enter for your comments, and they should also inform the user to use a [Pen Name] or you can use what ever term they want to use [Not Your True Name].

2. Is it a [Phrase/ Secret Question:] or a secret question that they want, it makes it easy if you can use the same one on all the sites, either a phrase or a secret question, or you have to start having a very long list.

3. The Log In, Log Out should be in the upper right hand corner for all sites instead of the user looking all over the computer screen to find it, it should be a protocol. The Log In, and Log Out should be the only one on the site period, the user should then have total and complete access to every article on the site, a password is unnecessary as the site recognizes the [IP] user name is all that’s required, it should be a protocol.

4. The author posting any article on the site should be required to post their return e-mail address at the bottom of the article, if they had they backbone to write it, then they should have the backbone to take the heat for it from readers, it should be a protocol.

5. The person running the site should take heat for running their site too, and at least at the bottom of his article section post; [Your posts are welcome in the Forum. You can send me a private tip by clicking on the “Contact” button in the upper right.], The Contact button can be under the Log In / Log Out, it should be protocol.

6. Now, the Name (Required), Mail (Will not be published, required), now first of all it’s E-Mail Address, not Mail so it should state E-Mail Address Required. Now if it’s really necessary, which it isn’t then either put it at the top or bottom of the comment space, now let’s understand that is just an extra [Unnecessary Step], the user already has signed in, once you type in the first letter of your users name that should let the site know the comment is ended or just have [End Comment] at the bottom of the box, it should be a protocol.

7. The comment section, there should be some standard set [500, 1000, 2000, unlimited] characters, the present system is nuts, so they should have a standard character amount, it should be a protocol.

8. When you complete your comment section it should automatically show you the comment you made and should request a [Confirm/Review] of the comment, with a [Submit/Confirm/Enter] comment after the review screen, it should be a protocol.

9. The [Country/Language], should also be handled by the [IP], once you have given the site that information, you may be in the Empire but only speak Spanish, but with the [IP] it should respond in [Spanish], it should be a protocol.

10. When you Log-Out the site should have a space or in the middle of the screen, have [A. You many now Log Out, B. Sign In Again, C. Go Back to the page you were on, D. Go to the Homepage]. It gives you a choice as what you want to do, and if you choose to Log Out it should state Good Bye you are now logged out, with a follow up of You may now close your browser, [leave the internet if you so choose] it should be a protocol.

11. Moderators are a good idea they keep the discussion civilized and focused, and the [BBC] British Broadcasting Company have the best on the internet, they work with the blogger with the intent of NOT baring, individuals from sites for life, and eternity, sending posting back to the bloggers with recommendations for resubmission. They also keep the discussion civilized stopping personal attacks between bloggers, but allowing attacks upon the comments themselves without the use of vise or profane language, [BBC] Moderators upgrade the discussion.

12. The worse sites are American based sites, without moderators, or at times with moderators, which are primarily Liberal Democratic Sites, its there way or the highway, they bar for life and eternity if the blogger does not agree with their way of thinking. You enter a Democratic Liberal Site in America at your own risk, its generally a bar room knife fight, with no holds barred, with vile profane personal attacks the norm, with the site sponsors generally joining in. On an American Republican Site they are more open to free speech and taught not that they agree but at least they know what you are thinking. The Democratic Sites are about FIGHTING enforcers; the Republicans are more about Finessing, Con Men. A Democratic will steal your hard earned money and waste it on crazy half baked [not carefully taught thru] programs and ideas, Democratic not only kill the goose that lays the golden eggs they eat it, a Republican will let you have your hard earned money con you out of it, along with having you on a payment schedule, of a dollar down and a dollar a week, a Republican just keeps collecting the eggs, and will not let the goose die without at least trying to produce another generation of golden egg laying geese.

There should be Web Page Protocols, [IMHO] In My Humble Opinion.

HERCULE TRIATHLON SAVINIEN


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