I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, April 29, 2006

Building the Secrecy Wall higher and higher

There are multiple investigative efforts underway -- Congressional, judicial, journalistic -- seeking to uncover the Bush administration's illegal warrantless eavesdropping activities aimed at Americans, and the administration, in order to keep its conduct concealed, has doggedly sought to impede each of these investigations. The administration's cover up of its behavior has become so severe that the usually meek Arlen Specter actually threatened this week to introduce legislation to cut off funding for the NSA program unless the administration ceased its stonewalling of the Judiciary Committee's investigation.

The latest such obstruction is the administration's invocation of what, prior to the Bush administration, was the rarely invoked "State Secrets Privilege" in order to demand that a federal judge dismiss the lawsuit brought by the libertarian privacy group Electronic Frontier Foundation against AT&T. That lawsuit alleges that AT&T secretly diverts electronic communications to the NSA in order to allow the NSA to monitor those communications without warrants, i.e., in violation of the law. From this morning's The New York Times:

The lawsuit, accusing the company of illegally collaborating with the National Security Agency in a vast surveillance program, was filed in February by the
Electronic Frontier Foundation, a civil liberties group.

The class-action suit, which seeks an end to the collaboration it alleges, is based in part on the testimony of Mark Klein, a retired technician for the company who says Internet data passing through an AT&T switching center in San Francisco is being diverted to a secret room. There, Mr. Klein says, the security agency has installed powerful computers to eavesdrop without warrants on the digital data and forward the information to an undisclosed place.

The foundation has filed documents obtained by Mr. Klein that ostensibly show detailed technical information on N.S.A. technology used to divert Internet data. He has also said in a deposition that employees of the agency went to the switching center to oversee special projects.

The judicially created "State Secrets Privilege" was first recognized by the Supreme Court in United States v. Reynolds, 345 U.S. 1 (1953), a suit brought under the Tort Claims Act by the widows of 3 civilians who died when an Air Force plane crashed. The widows sought to obtain military reports regarding the crash in order to prove that the Air Force was negligent, but the Supreme Court upheld the Government's refusal to produce the documents on the ground that doing so would divulge military secrets and harm national security:

It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.

As it turns out, those Air Force reports were finally released 47 years later -- in 2000 -- and they contained no military secrets at all, but were suffuse with information showing that there had been gross negligence with regard to the maintenance of the plane's engines, facts which would have likely been fatal to the Air Force's defense had it not been able to successfully conceal those documents by falsely claiming that national security would be harmed by disclosure:

But in early 2000, one of the daughters of the deceased crew members acquired newly declassified copies of the documents that the Air Force had withheld and was astonished to find nothing corresponding to what the Air Force affidavits had portrayed.

"Contrary to the statements in the Affidavits, on which the Supreme Court expressly relied, not one of the documents... contain any secret or privileged information," according to a new complaint, filed last October. "The documents consist, instead, of admissions of negligence on the part of the Air Force."

One of the odd - and dangerous - features of this privilege doctrine is that, in many cases, courts allow the Government to assert the privilege without even submitting the documents in question to a judge for the judge to review in secrecy, a process known as in camera review. That process is typically used to enable a judge to review documents over which there is a disputed privilege claim (such as attorney-client privilege) without the other side being able to see the documents before there is a ruling on whether the documents are really privileged. But unlike other privileges, once the Executive asserts the "State Secrets Privilege," courts frequently accept the government's claim without even reviewing the documents. As the Reynolds Court explained:

Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the [345 U.S. 1, 10] caprice of executive officers. Yet we will not go so far as to say that the court may automatically require a complete disclosure to the judge before the claim of privilege will be accepted in any case.

In other words, the doctrine is notable because the Executive Branch can decree that the documents should not be disclosed because disclosure will harm national security, and that decree is, in practice, often blindly accepted without anyone reviewing its truthfulness or propriety. For that exact reason, and quite unsurprisingly, the Bush administration loves this doctrine, as it is so consistent with its monarchical view of presidential infallibility, and the administration has become the most aggressive and enthusiastic user of this doctrine as a means of preventing disclosure of government documents:

"This comparison highlights the risk of permitting the executive branch to determine, without close judicial scrutiny, whether relevant government information may be withheld from discovery," according to D. Churchill and E. Goldenberg in a paper entitled "Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds," published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003. . . .

And "recent cases indicate that Bush administration lawyers are using the privilege with offhanded abandon," they write in a comprehensive study to be published this year in Political Science Quarterly.

Unsatisfied with the mere power to unilaterally block courts from obtaining relevant documents while he is in office, President Bush, while the rubble from the World Trade Center was still sitting in lower Manhattan and everyone was distracted by that, had the presence of mind to extend this power to assert the State Secrets Privilege to both his father and to himself for life and even thereafter:

In November 2001 President Bush issued executive order 13233 that would permit former presidents to independently assert the state secrets privilege to bar disclosure of records generated during their tenure.

More than that, the Bush order would make the state secrets privilege hereditary, like some divine right of kings, enabling the heirs of deceased presidents to assert the privilege after their death.

"This is a power heretofore unrecognized either in courts or politics," Weaver and Pallitto observe.

As the Chicago Tribune detailed last year, the administration has also used this doctrine repeatedly to obstruct any judicial proceedings designed to investigate its torture and rendition policies, among others:

The Bush administration is aggressively wielding a rarely used executive power known as the state-secrets privilege in an attempt to squash hard-hitting court challenges to its anti-terrorism campaign.

How the White House is using this privilege, not a law but a series of legal precedents built on national security, disturbs some civil libertarians and open-government advocates because of its sweeping power. Judges almost never challenge the government's assertion of the privilege, and it can be fatal to a plaintiff's case.

The government is invoking the privilege in an attempt to wipe out the heart of a lawsuit that seeks to examine rendition, the secretive and controversial practice of sending terrorism suspects to foreign countries where they might be tortured.

Use of the secrets privilege could also eliminate a suit by a former FBI contract linguist who charges that the bureau bungled translations of terrorism intelligence before and after the Sept. 11 attacks.

The Bush administration is also using the secrets privilege to seek dismissal of a third case not related directly to terrorism. And the administration has invoked the privilege in less sweeping ways on several other occasions.

The use of state-secrets privilege, critics say, is part of President Bush's forceful expansion of presidential secrecy, including a more restrictive approach to releasing documents under the Freedom of Information Act; limitations on the dissemination of presidential papers; and curtailment of information on people rounded up in the war on terrorism.

And so it goes, over and over, with seemingly no end. This administration endlessly searches out obscure legal doctrines or new legal theories which have one purpose -- to eradicate limits on presidential power and to increase the President's ability to prevent disclosure of all but the most innocuous and meaningless information.

A chilling Washington Post op-ed this morning from former investigative journalist Mark Feldstein regarding the FBI's unprecedentedly aggressive attempt to use the Espionage Act of 1917 -- a law which, prior to this administration, was reserved for very narrowly defined cases of true espionage but which is now being converted into an all-purpose Official States Secret Act -- makes clear just how systematic is this effort to erect an impenetrable and unprecedented (at least for our country) wall of secrecy around this administration's conduct.

This administration has been caught in one abuse of power scandal after the next. A majority of Americans no longer trust the administration's honesty or competence. The absolute last thing that they ought to be doing is engaging in a full-fledged campaign to create unprecedented shields of secrecy around what they are doing, so that they can operate with more secrecy and less transparency than any government we have previously had. And yet that, of course, is just what they are doing.

When the NSA scandal began, the administration boastfully insisted that it had nothing to hide and welcomed as many investigations as could be brought, while their defenders claimed that such investigations would be wonderfully helpful to the President politically. Six months later, we still don't know who was eavesdropped on, whether those eavesdropped on had anything to do with terrorism, what was done with the information, and whether there are other warrantless eavesdropping programs besides the one the New York Times discovered. And the reason we don't know any of that is because the administration, consistent with their extremist love of government secrecy, has done everything possible to prevent the very investigations they claimed that they welcomed.

UPDATE: Christy at FDL has more on this case.

UPDATE II: This article in The Oregonian reports on what might turn out to be the most significant, currently pending challenge to the legality of the administration's warrantless eavesdropping program. The lawsuit was brought by various plaintiffs and their attorneys alleging that their conversations were illegally eavesdropped on by the administration as part of the NSA program (something they discovered when the administration accidentally and incompetently produced transcripts of the recorded conversations to the lawyers). The Govenrment requested permission to file their response to the lawsuit in secret -- without even the plaintiffs being able to see the response -- but the judge denied the request, concluding that the Government failed -- at least thus far -- to provide convincing rationale to justify that level of secrecy.

There are far too many of these investigative branches for the administration to permanently conceal their conduct in the NSA scandal. It is only a matter of time before it is exposed.

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