Wednesday, May 17, 2006

The NSA litigation: the government uses the nuclear option

Last Friday, the government filed its first motion to dismiss one of the broad challenges to the NSA surveillance program, EFF’s lawsuit against AT&T. The government asked the court for permission to enter the case—EFF had sued only the private phone company AT&T—and, as expected, the government promptly resorted to the nuclear option, basing its argument for dismissal on the state secrets privilege, which I described in a posting three weeks ago.

It its most basic terms, invocation of the state secrets privilege involves the government submitting an affidavit from a department head saying that any court proceedings would end up spilling secrets that would threaten national security, and asking the court to dismiss the suit just based on those grounds. Typically, when faced with sensitive evidence, a court may close the courtroom, place briefs under seal, and make the other side's attorneys promise not to divulge the information, or even make them seek security clearance in rare cases. The state secrets privilege says that isn’t good enough for some secrets. For the most sensitive secrets, the case must be dismissed outright. Even the judge cannot be trusted to hear them. In fact, they are so sensitive that the judge can’t even evaluate the level of confidentiality required for himself; instead, he must rely on an executive affidavit. Or so the government’s argument goes.

For the administration’s flacks, this marks an analytical jump from “the program is absolutely legal” to “we can neither confirm nor deny anything about the program.”

Citing such legal classics as In re Under Seal—a great name for a state secrets case if ever there was one—the government has argued that a lawsuit against a private company alleging that that company violated federal law (racking up millions of dollars in liability to the plaintiffs in the process) must be dismissed without a moment’s further inquiry. This despite the fact that the plaintiffs already possess documents which they claim provide all the proof they need to win the case.

This wasn’t the only government attempt to cover its tracks filed last Friday. In another NSA Program challenge in Oregon, the government again resorted to an ex parte filing—that is, it submitted a brief for the judge’s eyes only, not to be seen (or responded to) by the other side’s lawyers. The case alleges that the NSA spied on domestic communications between a Muslim charity in Oregon and its lawyers in Washington, DC. This is a shocking claim: that not only is the NSA involved in warrantless domestic surveillance (something the administration has managed to deny until this weeks’ revelations concerning calling records), but it is not even confining itself by the usual constitutional rules prohibiting eavesdropping on privileged communications between attorneys and clients. The plaintiffs imply they have proof of all this in the form of a document accidentally released by the government in the course of earlier proceedings whereby the charity was designated as a terrorist organization by the Treasury Department. That document was filed under seal by the plaintiffs, and the government desperately wants to keep it hidden from public view.

Where was this secret brief filed? In some safe room in the federal courthouse? You’d think so, but it wasn’t filed with the court. Rather, the brief and its classified exhibits are “currently stored in a proper secure location by the Department of Justice and are available for review by the Court upon request.” The “by request” portion of that sentence is quite remarkable. Let me explain why by analogy: Even with the advent of electronic filing systems (where briefs and other papers are all filed on disk or via the web), courts have been reluctant to accept briefs containing internet hyperlinks, in part because they worry that if a judge (or his clerks) click on a link in a brief, that may tip off one of the parties to what the judge is looking at, working on, or thinking about, or may tip people outside the courthouse off to the fact that a decision is close at hand. The government’s insistence that the judge in the Oregon case ask permission to visit the secret brief in its secure home and read it is similar in some ways: it effectively allows the DOJ attorneys in Washington to follow the judge’s reading habits. As if he couldn’t be trusted to drop in on his own. Amazing.

The government has apparently threatened to invoke the state secrets privilege in that case if plaintiffs do not self-limit their discovery (pretrial document) requests. Thusfar it’s only a threat. But that’s basically how any privilege works—like insurance, it gives the person covered an extra incentive to misbehave. Why respond in good faith to legitimate discovery requests when you have the nuclear option and the other side doesn’t?

The government has managed to successfully assert the state secrets privilege in several cases recently. One of them involved Sibel Edmonds, a Turkish translator hired by the FBI who was appalled at what she saw inside the agency’s translation section and complained to her superiors. Like many whistleblowers before her, she was fired. She brought suit, and the government successfully argued (before a host of conservative trial and appeals judges—the latter barred her from the courtroom during the argument of the appeal) that the state secrets privilege was an absolute bar to her suit going forward. The Supreme Court declined to review the case.

What was it she was trying to tell her supervisors that got her fired? Among other things: that a translator sent to Guantánamo to translate Farsi detainee interviews didn’t speak that language, and that foreign diplomats suspected of spying in the U.S. were having their wiretaps translated by their own relatives who worked for the FBI. Rather than let those serious national security breaches see the light of day (and perhaps become subjects of an embarrassing outside investigation), the FBI fired her, and then successfully managed to deprive her of her vindication in court, courtesy of the state secrets privilege.

The Edmonds case reveals the rot at the heart of the government’s “war on terror”—that the legal shortcuts the administration has used, by removing oversight, ended up weakening law enforcement’s efforts against terrorism by diminishing accountability. (No surprise, then, that most of these shortcuts were dreamt up by ivory-tower right-wing academic lawyers such as John Yoo with no experience in law enforcement.) The same applies to the massive detention sweeps that have alienated immigrant communities—law enforcement’s most valuable ally, its eyes and ears on the street—from the federal authorities, and to the warrantless and most likely suspicionless surveillance carried out by the NSA—which the Times and Post exposed as being vast sinkholes of effort for the agents forced to follow the NSA’s dead leads.

Feel safer?

May 16, 2006


Blogger Sini said...

I said Macaca!!!!

7:01 PM  

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