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Lawyers Allege Ongoing ‘Dragnet’ Surveillance


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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