In Warrantless Wiretapping Case, Obama DOJ's New Arguments Are Worse Than Bush'sFriday evening, in a motion to dismiss Jewel v. NSA, EFF's litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration's made two deeply troubling arguments.
First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue "would cause exceptionally grave harm to national security." As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence. It's an especially disappointing argument to hear from the Obama Administration. As a candidate, Senator Obama lamented that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of civil court." He was right then, and we're dismayed that he and his team seem to have forgotten. Sad as that is, it's the Department Of Justice's second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes. This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.
http://www.eff.org/deeplinks/2009/04/obama-doj-worse-than-bushNew and worse secrecy and immunity claims from the Obama DOJGlenn Greenwald
But late Friday afternoon, the Obama DOJ filed the government's first response to EFF's lawsuit (.pdf), the first of its kind to seek damages against government officials under FISA, the Wiretap Act and other statutes, arising out of Bush's NSA program. But the Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.
In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.
...
Every defining attribute of Bush's radical secrecy powers -- every one -- is found here, and in exactly the same tone and with the exact same mindset. Thus: how the U.S. government eavesdrops on its citizens is too secret to allow a court to determine its legality. We must just blindly accept the claims from the President's DNI that we will all be endangered if we allow courts to determine the legality of the President's actions. Even confirming or denying already publicly known facts -- such as the involvement of the telecoms and the massive data-mining programs -- would be too damaging to national security. Why? Because the DNI says so. It is not merely specific documents, but entire lawsuits, that must be dismissed in advance as soon as the privilege is asserted because "its very subject matter would inherently risk or require the disclosure of state secrets."
What's being asserted here by the Obama DOJ is the virtually absolute power of presidential secrecy, the right to break the law with no consequences, and immunity from surveillance lawsuits so sweeping that one can hardly believe that it's being claimed with a straight face. It is simply inexcusable for those who spent the last several years screaming when the Bush administration did exactly this to remain silent now or, worse, to search for excuses to justify this behavior.
http://www.salon.com/opinion/greenwald/2009/04/06/obama/index.htmlShut Up: It's Still A SecretYesterday, the Justice Department embraced the argument that the state secrets privilege - a fancy phrase denoting the executive branch's common law prerogative to protect classified information - should shut down any litigation against the National Security Agency for its arguably illegal warrantless surveillance program.
The case, Jewel v. NSA, is one part of a complex web of cases brought by civil libertarians against the government. They're challenging the program itself, Congress's grant to telecommunication companies of retroactive immunity, and even the rights of state governments to issue subpoenas relating to NSA activities. Jewel is perhaps the simplest to litigate; its five plaintiffs are regular folks who contend that their telecom carrier, AT&T, illegally transmitted information about their phone habits to the NSA. Defendants include the NSA and various government official who sanctioned the program. Pull one strand and the whole weave of surveillance activities will unwind. That's essentially what the government is arguing. Although, thanks to journalists, much is already known about the NSA's domestic surveillance program before it was reauthorized and rewritten, very little is known about the program today. It still exists, albeit in some neutered form.
Reports indicate that domestic communications are monitored holistically, with computers searching for patterns among the metadata - think of subject lines in e-mails. The NSA continues to work with telephone companies; it has enlisted the cooperation of companies that operate major internet hubs, as a good chunk of foreign internet traffic flows through routers controlled by American companies. NSA whistleblowers and anonymous officials have spoken of "thousands" of American citizens whose calls were monitored, although the NSA and CIA will not cop to those numbers. The program expires at the end of 2009, at which point the Obama administration is expected to mount a vigorous fight to reauthorize it in full.
The government, in a filing yesterday, argues that the Jewel will disclose state secrets if it proceeds, and that if such secrets are needed for the case to be litigated - i.e, to be argued on its merits -- it cannot be litigated. There is ample precedent for this argument. As I've written before, the state secrets privilege is one of the most powerful instruments of executive power. There are no uniform standards for judges to use in order to determine whether the government is simply asserting the privilege because they're embarrassed, or whether the privilege's assertion really protects vital secrets. Obama has criticized this lack of accountability, but his Justice Department has not figured out how to retract the privilege in a bevy of Bush-era cases without damaging the privilege itself - something they don't want to do.
The government also makes a complex argument about sovereign immunity; it argues that the case against particular persons performing their government jobs can't proceed unless Congress waives immunity. Such immunity is being challenged elsewhere, but only, in this understanding, can a basic case asking for injunctive relief from the government proceed.
http://politics.theatlantic.com/2009/04/shut_up_its_still_a_secret.php
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