Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program after The New York Times disclosed its existence in December 2005: that the president’s wartime powers enabled him to override the FISA statute. But lawyers for Al Haramain were quick to argue that the ruling undermined the legal underpinnings of the war against terrorism.

One of them, Jon Eisenberg, said Judge Walker’s ruling was an “implicit repudiation of the Bush-Cheney theory of executive power.”

“Judge Walker is saying that FISA and federal statutes like it are not optional,” Mr. Eisenberg said. “The president, just like any other citizen of the United States, is bound by the law. Obeying Congressional legislation shouldn’t be optional with the president of the U.S.”

Marcy thinks the Justice Department will decline to appeal, thereby letting Judge Vaughn Walker’s determination of illegality stand, but will also keep “details of how and what it did secret” and forestall a challenge on the limits of the government’s authority to determine whether certain disclosures jeopardize national security. (The so-called ‘State Secrets’ doctrine.) Her argument has the virtue of providing the administration with a political setback for its resurgent adversaries from the Bush era — who are fighting to stop the closure of Guantanamo Bay or link it to the abandonment of civilian trials for terrorists — while preserving its own legal authority.

What’s particularly interesting about the assertion this time, though, is that it doesn’t appear to be simply covering up Bush-era government misconduct. The case, Shubert v. Bush, suggests an ongoing illegal government data-mining program that intercepts and listens in on a huge range of communications by U.S. citizens. The complaint (PDF), filed by ordinary U.S. citizens living in Brooklyn, N.Y., who communicate with people in different countries, is a fascinating read that charges the government is engaged in a bizarrely vast surveillance dragnet. On the one hand, it sounds completely paranoid; on the other hand, it could be true.

We may never know, however, because if Attorney General Eric Holder has his way, the case will be dismissed before the lawyers even get a chance to investigate. That’s because the government has “to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country,” as Holder said in a statement released late on Friday. Holder has once again invoked the so-called “state secrets privilege,” this time reluctantly, he says, because “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.”

In fact, federal courts handle classified and sensitive information all the time without disclosing it publicly, by filing records under seal and requiring the lawyers involved in the case to obtain security clearance. It’s unclear why that wouldn’t work in this case. But one implication of Holder’s statement is that the spying and data-mining program is ongoing, so to reveal it would harm national security.

Another equally disturbing implication of Holder’s statement is that even if the government were engaged in blatantly illegal conduct that violates the U.S. Constitution, the Foreign Intelligence Surveillance Act, the Wiretap Act and other federal laws, there would be no way for any U.S. citizen targeted by the government’s illegal conduct to find out, let alone to hold anyone accountable.

As Ilann Maazel, a lawyer representing the plaintiffs who filed the case, told the National Law Journal earlier today, “In the Justice Department’s view, the government is free to violate any law” based on the assertion that national security is involved. “What the government is doing is avoiding any inquiry into the program.”

Judge Vaughn Walker in the Northern District of California, where the case is pending, has previously greeted the government’s assertion of the state secrets privilege with skepticism, and, in at least one case against an Islamic charity that claimed it was wiretapped, allowed the case to proceed.

We’ll be following closely to see what he does with this one.

On Friday, I heard from Jonathan Freiman, a constitutional lawyer who represents Jose Padilla in a lawsuit against the government.

By promising to improve its policy for invoking the state secrets privilege, the Obama Justice Department last week announced, with much fanfare, that it will require the attorney general to sign off every time the Justice Department claims “state secrets” trump a victim’s charges. Well, as Freiman points out, that’s what the law has always required, at least in theory. And that hasn’t stopped the government from using the state secrets privilege in the past simply to cover up government wrongdoing.

“Ever since the Supreme Court first recognized it in U.S. v. Reynolds, the doctrine has required that any invocation of the privilege be supported with an affidavit from the head of the relevant government department,” wrote Freiman in an email. “If we expect the A.G. to be more likely than other high government officials to respect law – and less likely to invoke the state secrets privilege just to cover up government wrongdoing – then the new policy is a good thing.”

“But for most of the last decade there wasn’t much reason to put the A.G. on a pedestal above his cabinet peers,” Freiman wrote. Maybe things will change, he said, but “with the administration’s continuing opposition to real checks and balances, it’s possible that we’ll never really know whether they’ve changed.”

That is, of course, the problem with allowing the government to claim “state secrets” to dismiss a case without even letting the judge review the evidence to decide if it’s really a national security concern or not. After all, in the Reynolds case, when the government first claimed the privilege, insisting that release of information about a military plane crash would endanger national security, it turned out the Justice Department was just hiding the military’s own negligence — and denying the widows of the plane crash victims not only compensation, but any opportunity to find out what really happened.

Correction: I mistakenly identified Jonathan Freiman as representing Al Haramain Islamic Foundation in a previous version of this post. He represents Jose Padilla. Jonathan Eisenberg represents Al Haramain. This post has been updated to reflect the correction.

President Barack Obama (WDCpix)

Although the Obama administration’s much-anticipated new policy on the use of the so-called “state secrets” privilege, announced this morning, has drawn some praise, civil liberties lawyers and other critics of the use of the privilege don’t think it solves the problem.

The state secrets privilege allows the government to conceal certain evidence in a court case that, if disclosed, would endanger national security by revealing “state secrets”. But who gets to decide what is a state secret and whether it will actually endanger national security has long been a point of contention. The Department of Justice, first under President Bush and then under President Obama, has invoked the privilege to ask courts to dismiss every single legal case that has come before them seeking compensation for torture or warrantless wiretapping by the government. That’s led critics to charge that the administration is trying to use the evidentiary privilege not to protect national security, but to conceal government wrongdoing and avoid embarrassment, or worse.

Today’s announcement says the government will use the privilege more sparingly, and requires the attorney general himself to sign off on its use. But the provision does not bar the government from using the privilege to try to dismiss cases alleging government wrongdoing.

“They don’t anywhere say, ‘we will not seek dismissal on state secrets grounds at the outset’” of a case, said Ben Wizner, a staff attorney at the American Civil Liberties Union who’s come up against the privilege while representing victims of torture. “They say we’re going to make an effort to apply it as narrowly as possible. But that doesn’t change what they’ve been doing all along.”

What the Department of Justice has been doing all along is essentially what the Obama administration has done in one case Wizner’s working on, in which a victim of torture due to the CIA’s “extraordinary rendition” program sued Jeppesen Dataplan, a subsidiary of Boeing, claiming the company was partly responsible for helping transport CIA prisoners to other countries to be tortured. The government claimed that allowing the case to go forward would reveal state secrets and endanger national security, and asked the court to dismiss it. Eventually, the ACLU won the right to proceed with the litigation, but the Obama administration in June asked the court of appeals to reconsider and dismiss the case.

“Any new policy will be an empty gesture if the administration continues to assert the same expansive theory of state secrets to dismiss cases brought by torture victims,” Wizner said Wednesday. “At the same time that they are rolling out this new policy with fanfare, they are asking the Ninth Circuit [Court of Appeals] to reverse its own decision and rehear the case because of state secrets.”

The Jeppesen case is one of several where the Obama administration has made the same expansive arguments that entire cases should be dismissed to protect state secrets, rather than simply excluding the particular piece of evidence that could actually endanger national security.

The real problem, say critics, is that the Obama administration is trying to use its new policy as a way to prevent the passage of legislation that will clarify the role of the executive versus the role of the courts.

“The Bush administration’s approach to state secrets was wrong-headed, causing significant public distrust and potentially shielding government wrongdoing and embarrassing mistakes behind a questionable legal doctrine,” said Sen. Russ Feingold (D-Wis.) in a statement released after the Justice Department’s announcement today. Feingold is a cosponsor of the proposed State Secrets Protection Act, which would provide guidance to federal courts considering cases where the government has asserted the state secrets privilege. “While I am pleased that the Obama administration recognizes that the Bush approach was a mistake, its new policy is disappointing because it still amounts to an approach of ‘just trust us.’ ”

Or as Wizner put it, “this is voluntary executive self-policing.” Legislation would “bind not just this president but the next one. That’s critical.”

What’s more, the new policy doesn’t really address the role of judges in cases where the privilege is invoked. The proposed legislation, on the other hand, “says courts cannot dismiss cases simply on the basis that the government claims the case involves state secrets. The legislation says courts are required to look at the underlying evidence” and decide for themselves.  In many of these cases that have come up so far, it’s the government agency being sued — such as the CIA — that submits a statement to the court saying that the evidence that it committed a crime would endanger national security. “The court shouldn’t be able to rely just on an affidavit filed by the perpetrator,” said Wizner.

Under the proposed State Secrets Protection Act, if a court looks at the evidence and determines that some piece of it really does constitute a state secret — say, the identity of a CIA agent — then that evidence would be removed from the case. But before making that determination, the judge would have to explore every alternative, to see if other tools, such as protective orders, could be used to protect the evidence but still allow it to be used. If carefully and narrowly applied, says Wizner, only particular pieces of evidence that are not important to the litigation would have to be excluded. “No one’s saying we can litigate the identity of covert agents in civil cases,” says Wizner.

Ken Gude, Associate Director of the International Rights and Responsibility Program at the progressive Center for American Progress, expressed similar concerns about the Obama administration’s new state secrets policy. “My main concern is that the government should not be able to have a whole case dismissed simply by asserting a state secrets claim,” he said in an e-mail on Wednesday. “There may be instances when it’s simply not possible to proceed without certain evidence, but that should result from a subsequent decision after the plaintiffs have had a chance to plead their case without the material.”

That seemed to be what President Obama supported, too, when he first spoke about the state secrets privilege back in April. At an April 29 press conference, he called the state secrets doctrine “overbroad.” He went on to say that “searching for ways to redact, to carve out certain cases, to see what can be done, so that a judge in chambers can review information, without it being an open court — you know, there should be some additional tools, so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House counsel, and others are working on that, as we speak.”
Today’s announcement is the policy that resulted from that process. But critics aren’t convinced it that it will actually accomplish what the president has promised.

As Feingold said today: “Independent court review of the government’s use of the state secrets privilege is essential. I urge the administration to work with Congress to develop legislation that sets reasonable limits on the privilege and will not be subject to change under each successive president.”

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President Barack Obama (WDCpix)

A long-awaited filing Thursday in the al-Haramain v. Bush terrorism case before a San Francisco federal judge presents a dare to the Obama administration: embrace the Bush administration’s warrantless surveillance claims, invoke a secrecy doctrine that Attorney General Eric Holder has pledged to overhaul, or allow a case challenging the merits of warrantless surveillance to win.

Lawyers for al-Haramain, a Muslim charity that the Bush administration accused of having links to terrorists, filed a motion Thursday for U.S. District Judge Vaughn Walker to assess the legality of surveillance undertaken outside the boundaries of the Foreign Intelligence Surveillance Act. The motion, obtained by TWI, asks Walker to answer a question central to the Bush administration’s expansion of executive authority: “May the President disregard the requirements of FISA based on inherent presidential power?”

Illustration by: Matt Mahurin

Other lawsuits challenging the warrantless surveillance program of the Bush administration have been rejected by the courts, including by Walker, for insufficiently establishing that the plaintiffs were themselves subject to such surveillance — making the al-Haramain filing the most likely vehicle for determining whether the Bush administration broke the law by ordering surveillance outside of the boundaries of FISA.

“This is the culmination of three and a half years of work, over repeated attempts by the government” to shut the case down, said Jon Eisenberg, the lead attorney for al-Haramain. “There have been shenanigans by the Bush Justice Department, which were no surprise, but also by the Obama Justice Department, which has been a shock.”

In March, lawyers for the Obama administration followed its predecessor’s lead in the al-Haramain case, attempting to void the proceedings by invoking the “state secrets” privilege, which instructs judges to stop court proceedings because of potential national security concerns created by the airing of sensitive information. The original basis for al-Haramain’s case is a classified phone surveillance log that the government accidentally disclosed to al-Haramain’s lawyers and has since been recovered by the FBI. But Walker allowed the case to go forward after al-Haramain’s lawyers constructed a case using non-classified information — making no use of the so-called “Secret Document” — indicating that the Oregon-based charity was subject to surveillance.

With procedural obstacles cleared, the 41-page motion filed Thursday argues that the publicly available evidence demonstrates that al-Haramain was subject to illegal surveillance. “All you have to do is show me a FISA warrant and I’m gone,” Eisenberg said. More broadly, the motion asks Walker to rule on whether the Bush administration’s circumvention of the FISA statute for its passel of surveillance activities known as the Terrorist Surveillance Program was legal. “The time has come for this Court to address … the overarching constitutional question presented by President George W. Bush’s program of warrantless electronic surveillance,” the motion states. “May the President of the United States break the law in the name of national security?”

The Justice Department did not respond to questions about whether it would contest the al-Haramain motion, and if so, what arguments it would use to oppose it. In the past, Walker has rejected the Justice Department’s claims that even ruling that al-Haramain has the standing to sue would endanger state secrets, and he may do so again. But if the administration seeks to shut the case down using the state secrets privilege, it may antagonize the Senate, where Sens. Patrick Leahy (D-Vt.) and Arlen Specter (D-Pa.) have proposed legislation to restrain the government’s ability to invoke the privilege. Holder last month promised senators that the Justice Department would soon issue a new state secrets policy.

Eisenberg said he is curious to see whether the Obama administration would actually defend the warrantless surveillance activities of its predecessor. The motion seeks to put the administration in a bind by citing numerous statements from senior officials denouncing the Terrorist Surveillance Program as illegal and the constitutional arguments for it to be dubious.

“Warrantless surveillance of American citizens, in defiance of FISA, is unlawful and unconstitutional,” the motion quotes then-Senator Obama telling the Boston Globe in December 2007. Similar statements recounted in the motion come from Holder; Solicitor General Elana Kagan; Kagan’s deputy Neal Katyal; Assistant Attorney General David Kris; and Associate Deputy Attorney General Donald Verrilli.

“What does Obama do?” Eisenberg said. “This is not just a question of hypocrisy. It’s a big constitutional mistake if he endorses [former Vice President Dick] Cheney’s theory of executive power.”

A full court hearing before Walker is scheduled for Sept. 1.

Judge Vaughn Walker in San Francisco dismissed the cases because Congress explicitly gave the telecom companies immunity from civil suits in a 2008 amendment to the Foreign Intelligence Surveillance Act, or FISA.

Although the customers who sued, represented by the Electronic Frontier Foundation and the American Civil Liberties Union, claimed that the immunity provision of the law was unconstitutional, Judge Walker disagreed.

Significantly, however, he noted that at least one part of the argument presented “a close question,” leaving open the possibility that his decision could be reversed on appeal.

The lawyers who brought the case said yesterday that they plan to pursue that course.

“We’re deeply disappointed in Judge Walker’s ruling today,” Cindy Cohn, legal director of the Electronic Frontier Foundation, told Keith Perine at CQ Politics. “The retroactive immunity law unconstitutionally takes away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

Judge Walker also specifically wrote that his decision in the case against the telecoms does not foreclose other cases based on similar facts filed against the government.

“The court agrees with the United States and the telecommunications company defendants on this point: plaintiffs retain a means of redressing the harms alleged in their complaints by proceeding against governmental actors and entities who are, after all, the primary actors in the alleged wiretapping activities,” Vaughn wrote.

Meanwhile, in a separate ruling in the Al-Haramain case, Judge Walker ruled that the defunct Islamic charity can proceed with its case against the government even without the document that the Obama administration has been trying so desperately to conceal. That document — which the government inadvertently disclosed to Al-Haramain’s lawyers — establishes that the organization was wiretapped, its lawyers say.

A hearing on the merits of the case — whether the government broke the law when it wiretapped Al-Haramain and its lawyers without a warrant — is scheduled for September 1.

A ruling from Judge Walker last July that the president lacks the authority to disregard the Foreign Intelligence Surveillance Act, or FISA, does not bode well for the government.

Jon Eisenberg, Al-Haramain’s lawyer, summed it up at the time this way: “Judge Walker ruled, effectively, that President George W. Bush is a felon.”

The government brief was filed in the case of Al-Haramain Islamic Foundation v. Obama, the controversial case I’ve been following in which the Obama administration has repeatedly refused to comply with court orders to allow the plaintiff in the case — a now-defunct Islamic charity that says it was spied on without a warrant by the federal government — to use the document that apparently proves it was indeed the victim of the Bush administration’s warrantless wiretapping program.

Although the Justice Department has repeatedly argued that the “state secrets privilege” requires the case to be dismissed, the court has ruled that it doesn’t. Instead, U.S. District Court Judge Vaughn Walker has ruled, the court can provide Al-Haramain and its lawyers access to the document using standard federal court procedures to protect the evidence from public disclosure. The document is critical because without it, the defunct charity can’t proceed with its lawsuit, and it can’t prove that the National Security Agency under the Bush administration violated the law.

That’s not a good enough reason for the Obama administration to allow the group access to the document, according to the Justice Department. President Obama has only authorized access to such classified information on a “need-to-know” basis, the government argues, so the government  “cannot be sanctioned for its determination that plaintiffs do not have a need-to-know classified information.”

That argument seems to beg the question of who gets to decide what the plaintiff “needs to know” — Walker has already ruled, repeatedly, that the plaintiff does “need to know” the information, as it’s the only way for the organization to find out if it was spied on by the government in violation of federal law.

This case has outraged advocates for open government (and attentive bloggers like Marcy Wheeler and Glenn Greenwald), who say it’s a direct violation of Obama’s promises not to classify or otherwise conceal government information unnecessarily.

We’ll be watching to see how the judge responds to this latest government maneuver, but the ultimate question — who gets to decide whether a private party suing the government “needs to know” particular classified information — could well end up before the Supreme Court.

Here’s last night’s Q & A on the subject:

Q During the campaign you criticized President Bush’s use of the state secrets privilege. But U.S. attorneys have continued to argue the Bush position in three cases in court. How exactly does your view of state secrets differ from President Bush’s? And do you believe Presidents should be able to derail entire lawsuits about warrantless wiretapping or rendition, if classified information is involved?

THE PRESIDENT: I actually think that the state secret doctrine should be modified. I think right now it’s over-broad. But keep in mind what happens is, we come into office, we’re in for a week — and suddenly we’ve got a court filing that’s coming up. And so we don’t have the time to effectively think through what, exactly, should a overarching reform of that doctrine take. We’ve got to respond to the immediate case in front of us.

I think it is appropriate to say that there are going to be cases in which national security interests are genuinely at stake, and that you can’t litigate without revealing covert activities or classified information that would genuinely compromise our safety. But searching for ways to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument. And we’re interested in pursuing that. I know that Eric Holder and Greg Craig, my White House Counsel, and others are working on that as we speak.

Ok, sounds like a reasonable response, right?  Well, not so fast. 

In the cases where the state secrets issue has come up — notably, in the case of Al-Haramain v. Obama challenging warrantless wiretapping, and in Mohamed v. Jeppesen Dataplan, in which the plaintiff is suing the private company that helped the CIA carry out “extraordinary rendition” and torture — the Department of Justice could have easily asked for more time to consider the application of the “state secrets privilege.”  That’s a no-brainer: any plaintiff’s attorney would have given a new administration extra time to revisit the policy, rather than waste more time and money litigating it in court. But the Justice Department — President Obama’s Justice Department — did not do that.  To the surprise of even the judges on the Ninth Circuit Court of Appeals who heard the Jeppesen case, it insisted that it would assert the state secrets privilege just as broadly as the Bush administration had.  And in the Al-Haramain case, it actually went farther, telling the judge that he had no authority to order release of government documents, even after losing an appeal on the matter.

Now that this issue has become a public embarrassment, however, President Obama has been forced to talk about it. Last night, he said that there should be ways “to redact, to carve out certain cases, to see what can be done so that a judge in chambers can review information without it being in open court — you know, there should be some additional tools so that it’s not such a blunt instrument.”

Well, there already are. In fact, the judges in both the cases I cited above have already ruled that they can review the sensitive documents privately and that matters of national security can remain classified, as needed. Nobody was proposing busting open the CIA’s files of classified information about extraordinary rendition and wireless wiretapping and publishing them on the Internet. As the lawyers for the victims suing in those cases said repeatedly, they were happy to work with the court to find ways to protect any truly sensitive information; they just didn’t want their entire case thrown out — and their clients’ ability to seek justice destroyed — by the government’s assertion that the case must be crushed to protect a couple of documents.

Notably, President Obama did not say last night that he supports the State Secrets Protection Act, which would remedy the problem he referred to. In fact, he’s never taken a position on that law, as Greg Sargent has pointed out. Perhaps that’s because it would dilute executive power; the proposed law would prevent courts from dismissing cases based on government assertions that secrets are involved, and instead would require the courts to use already-available procedures to protect the evidence without throwing out the entire case. That sounds, at least, like what Obama said he wanted at Wednesday’s press conference.

Obama may be well-meaning and well-spoken on this issue, and his words last night sounded eminently reasonable. But as I’ve noted before, Attorney General Eric Holder has so far been unwilling to make any real changes to the administration’s attitude toward asserting broad state secrets privileges to dismiss litigation that challenges government lawbreaking.

If he’s going to follow through on the commitments he’s made to open government, Obama will need to do more than just say the right things.

The three judge panel reversed the lower court’s decision, which had accepted the government’s argument (then made by the Bush administration) that allowing it to move forward would endanger national security.

The logic of the state secrets privilege, the appeals court panel writes (pdf), “simply cannot stretch to encompass cases brought by third-party plaintiffs against alleged government contractors for the contractors’ alleged involvement in tortious intelligence activities. Nothing the plaintiffs have done supports a conclusion that their ‘lips [are] to be for ever sealed respecting’ the claim on which they sue, such that filing this lawsuit would in itself defeat recovery.”

In other words, as the the American Civil Liberties Union had argued on behalf of the five victims, there is no reason to prevent the victims from having their day in court against a government contractor that they claim knowingly assisted in their torture. Pursuing those claims don’t have to reveal any secret evidence about the CIA program that could be dangerous to disclose.

This is a huge victory, not only for the five victims themselves, but also for many civil liberties advocates. The Obama administration first asserted the “state secrets” privilege in January, upsetting many of the president’s supporters who had hoped that his earlier promises of more open government would put an end to unnecessary secrecy.

Although the Obama administration didn’t change its mind, the federal court has now taken that argument out of its hands.

It remains to be seen whether Justice Department will seek re-hearing from the full court of appeals, or review by the Supreme Court.

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As I first reported in February, the case — al-Haramain Islamic Foundation v. Obama — challenges the federal government’s warrantless wiretapping program.  The now-defunct Islamic charity is suing the government for wiretapping the group and its lawyers in violation of the Foreign Intelligence Surveillance Act, or FISA.

The Obama administration, like the Bush administration before it, asserted the “state secrets” privilege, saying that the entire subject matter of the case — the National Security Agency’s warrantless wiretapping program — was a state secret, and disclosing any details about it to the the lawyers representing the Islamic charity would pose a national security threat. The judge rejected that argument, as did the Ninth Circuit Court of Appeals.

But the Obama administration wasn’t going to let some federal judge tell it what to do. In March, it argued that Walker lacked the authority to reveal the secret document that supposedly proves al-Haramain was wiretapped. The Justice Department even went so far as to threaten to remove the document from the judge’s files.

In short, the Obama administration seemed to be setting up a direct standoff between the executive branch and the federal judiciary.

On Friday, the court rejected the Obama administration’s arguments and ordering the Justice Department to work out a procedure with al-Haramain’s lawyers by May 8 to allow them to view the secret document in a way that won’t compromise national security.

Let’s see what the Justice Department does now.