Generally, the Attorney General doesn't comment on routine procedural matters in ongoing cases. But Shubert et. al v. Obama is not routine, and the procedure in question -- the State Secrets Doctrine -- is politically sensitive for the administration. Late today, the Department asserted the privilege to prevent the National Security Agency from having to disclose information about its domestic collection activities after the disclosure of the Terrorist Surveillance Program, or TSP, in 2005. The plaintiffs allege they were caught up in a "dragnet" of NSA surveillance that included unwarranted massive collection of domestic phone calls, e-mails and other data.
The government could say that no such program existed. But, according to Holder, doing so would require it to disclose to the plaintiffs what programs actually did exist -- and the disclosure of those programs to the plaintiffs would jeopardize the NSA's current menu of collection programs, including those targeted at Al Qaeda.
Public reports and private information suggest that the NSA collects, sifts and searches through enormous volumes of electronic data, using sophisticated meta-data sorting techniques to extract useful intelligence. E-mail servers used by citizens of foreign countries are often routed through the US, and the U.S. government has reportedly signed several secret agreements to monitor telecom switches in other countries. Domestic calls and e-mails aren't monitored -- but they are collected for pattern analysis, and the NSA has had trouble figuring out how to separate the purely domestic traffic from international traffic. The TSP permitted the government to eavesdrop, without warrants, on domestic-to-international telephone calls. Additional compartmented programs, which have been modified but which remain in operation, collect and search through meta-data on domestic-to-international e-mail, fax and web communication. The NSA does not currently monitor domestic-to-domestic telephone calls, although they're having a devil of a time keeping up with technologies like VoIP.
Holder's statement suggests that he understands how objectionable it reads to the public for the department to assert, a priori, that the entire case ought to be thrown out because no evidence whatsoever could be safely disclosed.
"As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so," Holder said. "Much like previous litigation in which the government asserted the privilege, the core claims in this case involve questions about ongoing intelligence operations, and allowing it to proceed would disclose critical activities of high value to the national security of this country."
"We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power"
Holder said that the court had been given the information it needs "to conduct its own independent assessment of our claim by failing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely."
The judge in the case, Vaughn Walker, has been skeptical of the administration's SSP claims in several similar cases.
Holder said that the Justice Department would respect the decision of the judicial branch if it rejected the privilege assertion, although he does not say whether Walker's ruling would be sufficient -- or whether the Department would fight for the privilege until the Supreme Court affirms it or instructs them otherwise.
Those who follow the various NSA surveillance cases believe that Al-Hamarain v. Obama, where the Justice Department accidentally disclosed classified information to the plaintiffs, is the most challenging for the government.
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is a senior fellow at the USC Annenberg Center on Communication Leadership and Policy.