Just the other day, when I was writing about the case of Jewel v. NSA (and responding to the Columbia Journalism Review’s criticism that no one was covering this important case about warrantless wiretapping), I remarked that while everyone’s been up in arms about the Obama administration’s claiming the case should be dismissed because it would reveal “state secrets” — the same argument the Justice Department has made repeatedly in previous cases alleging illegal wiretapping and abusive interrogation programs — no one seemed to notice that the Jewel case charges that the wiretapping program is still going on.

Here’s a quote from the government’s brief asking the federal court to dismiss the case:

Plaintiffs in this action allege that the Government, through the National Security Agency (“NSA”), is undertaking an “illegal and unconstitutional dragnet communications surveillance in concert with major telecommunications companies,” and that NSA has indiscriminately intercepted the content of communications, as well as the communications records, of millions of ordinary Americans.

Interestingly, nowhere in its brief does the government deny that.  It just argues vehemently that the court should dismiss the case.

So should we really be all that surprised that, as James Risen and Eric Lichtblau report in The New York Times today, the charges may turn out to be true?

As Spencer’s already mentioned, Sen. Dianne Feinstein (D-Calif) and the Senate Intelligence Committee today promised to investigate. They might want to call the Electronic Frontier Foundation and their clients in the Jewel case as witnesses.

In fact, Hendler’s right. After reading his post more carefully, I can see that he was talking specifically about the government’s filing in the case of Jewel v. NSA – which, in fact, I wrote about last week.

Still, the headline — “Obama and State Secrets? Shhh…” — strongly suggested that he was talking more broadly about the lack of reporting on the state secrets controversy. And here’s the lead: “Obama, like Bush, decides to limit what the courts and the people can know about warrantless wiretapping. Isn’t that a big story?”

In fact, here at TWI, we (and others) have been covering in depth the Obama administration’s invocation of the state secrets privilege in warrantless wiretapping cases, with particular emphasis on the first such case to come before a court during the Obama administration, known as Al-Haramain Islamic Foundation v. Obama.

Hendler does go on to discuss the Jewel case, which involves a suit against the NSA. And he’s right that the filing in that case has gotten a bit less attention than the two earlier cases — one involving extraordinary rendition and torture, the other involving warrantless wiretapping — where the Obama administration made precisely the same argument. (Hendler notably neglects to mention the coverage of those cases and the broader state secrets issue.) My own view is that it’s a bigger news story the first (and second) time the argument’s made, but maybe a little less newsworthy the third time. That might be why the New York Times didn’t run the story either.

In any event, here’s how Hendler presents the story of the Jewel filing:

…on Friday, [the Obama Justice Department] sought to have the case dismissed by relying, in part, on a broad reading of a legal principle oft invoked by the Bush department, that the federal government could essentially stop legal proceedings by claiming that any litigation of the case would reveal state secrets.

This is a big deal, but so far the story has received little light outside of generally liberal leaning portions of the media.

Salon’s Glenn Greenwald almost certainly deserves sole credit for advancing the story thus far…

Now I don’t mean to drag this out, but that read to me (and to my two editors) like CJR was saying that this is the first time the Obama administration — rather than “the Bush department” — was making this claim, that the claim is shocking, and yet the news media is ignoring it.

What’s more, Greenwald, it seems to say, “deserves sole credit for advance the story thus far” seems logically, to me, to refer to the story of the Obama DOJ invoking “a broad reading of a legal principle oft invoked by the Bush department, that the federal government could essentially stop legal proceedings by claiming that any litigation of the case would reveal state secrets.”

But as I said in my previous post, I’ve already written more than 15 times about the Obama administration invoking the argument. Admittedly, I only wrote about it in the context of the Jewel case once, and I waited until Eric Holder made a public statement to Katie Couric about the DOJ’s position on the state secrets doctrine.

In fact, Clint could have called me — and others in the media — legitimately on something even more important, which many of us really have not given the attention it deserves. The difference between the Jewel case and the two previous cases is not that the Obama administration is initiating the argument rather than just continuing it from its predecessors, which isn’t a very substantive difference; it’s that the Electronic Frontier Foundation is claiming in Jewel that the warrantless wiretapping program at issue is not just a program of the Bush administration, but that it’s ongoing under the Obama administration.

In other words, the Obama administration now appears to be using the state secrets privilege to cover up its own allegedly illegal conduct, not just that of its predecessor.

Now that’s an under-reported story.

Attorney General Eric Holder and Katie Couric (CBS News)

In an interview that aired Wednesday night on the CBS Evening News, Attorney General Eric Holder suggested to Katie Couric that the Obama administration is unlikely to depart dramatically from the Bush administration’s position on the use of the state secrets privilege, noting just one case out of about 20 currently under review in which the Justice Department is seriously considering changing its stance. He did not say which case that was.

Most likely, the reversal won’t come in the case of Jewel v. NSA, because Holder’s Justice Department Friday again broadly asserted the “state secrets” privilege as a grounds for dismissing the case, brought by AT&T customers alleging the government used dragnet surveillance to monitor the domestic telephone communications of millions of ordinary Americans.

Illustration by: Matt Mahurin

The Department of Justice – first under President George W. Bush and now under President Obama – has repeatedly invoked this executive privilege, which allows the president to prevent public disclosure of evidence in court by claiming that its release would endanger national security. And increasingly, the Department of Justice has used the privilege not only to prevent public disclosure of documents, but to dismiss entire cases brought by victims of illegal policies, claiming that the subject matter of the case itself is a state secret, and that even the judge shouldn’t review the documents in private. A recent report by the Constitution Project, a bipartisan think tank, found that the Bush administration used the privilege to seek “blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs” in 92 percent more cases per year than in the previous decade.

Last night, Holder told Couric that after he took over the attorney general’s office, he asked lawyers in the Justice Department to see “if there’s a way where we can be more surgical, whether there is a way in which we can share more information.” The state secrets privilege, he said, is appropriately invoked “at certain times”, but “I want to make sure that we only do it where it’s absolutely necessary. I would only apply the doctrine where national security was at stake, where the lives of the American people were at stake,” he said.

Yet it’s difficult to see that standard at work in the recent cases where the Justice Department has invoked the state secrets privilege.

For example, in a federal court in San Francisco on Friday, the Obama Justice Department moved to dismiss the Jewel case based in part on the state secrets privilege. The AT&T customers who filed suit, represented by the Electronic Freedom Foundation, claim the National Security Agency illegally intercepted their calls and obtained their phone records as part of a broad-reaching, ongoing national security surveillance program and in violation of the First and Fourth Amendments of the United States Constitution, the separation of powers doctrine and federal statutes.

In its legal brief filed with the court, the government’s lawyers claim the case must be dismissed because allowing it to go forward at all would disclose information about the NSA surveillance program, which is itself a state secret. Disclosure of the information the customers want to see, claims the government, “which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Justice Department lawyers said in their filing.

This is the second attempt by ordinary AT&T customers to learn more about the government’s secret domestic wiretapping program and to hold the government or a company that assisted it accountable. An earlier case, also brought by the Electronic Frontier Foundation against AT&T itself, was quashed when, after the Bush administration had made the state secrets arguments in court, Congress passed a law granting immunity to AT&T and other telecommunications companies from lawsuits from customers who claimed the companies helped the government spy on them.

The broad use of the state secrets privilege to dismiss entire court cases challenging unlawful government actions has outraged civil liberties and open government groups such as the American Civil Liberties Union and Center for Constitutional Rights. Such advocates had counted on Obama’s promises in the first days of his presidency to run a more transparent government than his predecessor. But the Obama Justice Department already, in several cases seeking information about Bush administration counter-terrorism activities, has invoked the state secrets privilege to prevent the disclosure of critical evidence.

For example, in Al-Haramain Islamic Foundation v. Obama, which TWI has been following, the Obama administration asserted that the Bush administration’s domestic warrantless wiretapping program, or Terrorist Surveillance Program, is a state secret that cannot be revealed without endangering national security. Never mind that President George W. Bush had himself acknowledged the program’s existence, and President Obama has said it is no longer operative.

And in Mohammed v. Jeppesen Dataplan, which TWI first wrote about in January, the Obama administration asserted the state secrets privilege to seek dismissal of a case brought by five victims of the Bush administration’s “extraordinary rendition” program — which transferred prisoners to foreign countries for interrogation under torture. In that case, the victims, including Binyam Mohamed, the British resident I’ve written about, sued the subsidiary of Boeing that allegedly assisted the CIA in its torture program. The Bush administration immediately swooped in and convinced the federal court to dismiss the case because the now-defunct extraordinary rendition program is supposedly a “state secret.” In February, the Obama administration, to the surprise of even some of the judges sitting on the U.S. Court of Appeals for the Ninth Circuit that day, continued to maintain that argument.

During last night’s interview, Couric asked Holder whether he thought the state secrets doctrine had been abused by the Bush administration.

“Well, I don’t know,” said Holder. “On the basis of the two, three cases we’ve had to review so far, I think that the invocation of the doctrine was correct. We – reversed – are in the process of looking at one case. But I think we’re very likely to reverse it.”

Presumably, the three cases he’s referring to are the Jewel, Al-Haramain and Jeppesen Dataplan. But Holder went on to say that there have been more than 20 such assertions in cases that are still open. He added that a report on the Justice Department’s use of the privilege is being prepared, and his “hope is to be able to share the results of that report with the American people.”

Marc Ambinder, who obtained an early transcript of the interview, wrote Wednesday in The Atlantic that a senior Justice Department official “declined to elaborate” on in which case Holder was planning to reverse the department’s position.

Congress, meanwhile, may not leave the matter in Holder’s hands. In February, Rep. Jerold Nadler (D-N.Y.) and several co-sponsors introduced the State Secrets Protection Act of 2009, which would require a federal judge to look at the disputed evidence rather than dismiss the case outright based solely on the government’s assertion that its disclosure would endanger national security. A parallel bill was introduced in the Senate by Sen. Patrick Leahy (D-Vt.) and has six co-sponsors.