Shut Up: It's Still A Secret

The Obama Administration still wants to keep its secrets.

Yesterday, 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. (Glenn Greenwald makes a persuasive case about why this assertion is fairly radical.)

Fine. But that's where the state secrets privilege is invoked.

 Plaintiffs' Complaint quite clearly seeks disclosure of whether or to what extent the Government may have utilized certain intelligence sources and methods after the 9/11 attacks in order to detect and prevent further attacks. It also seeks disclosure of whether any of the alleged activities (if they exist) are ongoing."  

As the government notes, previous courts have given the executive branch the authority to determine whether such information would harm national security, requires judges to give the government the "utmost" deference, and does not even require the judge to assess the nature of the evidence in camera.


"...the DNI has explained that the disclosure of information concerning whether or not plaintiffs have been subject to alleged NSA intelligence activity would inherently reveal NSA intelligence sources and methods."

The government claims that the program under which the illegal "dragnet" is alleged to have occurred - the TSP - or the first Bush Terrorist Surveillance Program - is "no longer operative."  But - the government claims - in order to prove that in court, it would have to disclose information about what the NSA is doing right now - and darn it, wouldn't you know, that'd be a secret the government cannot do without.

The Government's privilege assertion also precludes plaintiffs from establishing standing as to any statutory claim that may survive the Government's motion to dismiss. For each cause of action, plaintiffs must establish, as a threshold matter, that they have been "aggrieved"--that is, subject to the alleged action being challenged. Because plaintiffs cannot adduce proof that the content of their communications has been collected by the Government, or that their communications records likewise have been obtained by the Government, the most basic element of every claim--their standing as "aggrieved persons"--cannot be established. It bears emphasis that plaintiffs' allegation of a "dragnet" of surveillance by the NSA--the alleged interception of communication content and records of millions of domestic and international communications made by ordinary Americans, see, e.g. Compl. ¶ 7--does not establish their standing. Even if that allegation were sufficient to avoid dismissal on the
pleadings, plaintiffs would be required to demonstrate that they personally have been subject to the alleged communications dragnet, and the information relevant to doing so is properly protected by the state secrets privilege."

I asked a national security lawyer who generally supports the administration's policies to weigh on this latest assertion of privilege.
"I appreciate that the new administration has a lot on its plate in this and related areas, that it is hampered by some difficulty getting its legal team confirmed by the Senate, and that it has said repeatedly that it is reviewing government policy on asserting the state secrets privilege," this lawyer said. "But all we have to go on now is what they have done so far and this latest position is disappointing."