By William Fisher
Despite President Barack Obama’s formation of a new task force to review government secrecy, and an ongoing investigation into use of the so-called “state secrets doctrine,” lawyers for the new Administration refused last week to disclose information on the government’s use of warrantless wiretaps and backed legislation to block the release of photos of prisoner abuse in Iraq and Afghanistan.
Last week, Obama announced the formation of a task force to review government classification policies, proposing the creation of a National Declassification Center to facilitate public disclosure of once-secret information.
The president reaffirmed his commitment " to operating with an unprecedented level of openness."
But the next day, Department of Justice (DOJ) lawyers filed notice of the government’s intention to challenge in the Supreme Court a New York federal appeals court ruling ordering the administration to make public the photographs allegedly depicting the abuse of terrorism suspects in U.S. custody.
The American Civil Liberties Union (ACLU) had filed a Freedom of Information Act (FOIA) suit to force their disclosure. A federal court judge agreed and ordered the government to release the photos. President Obama initially indicated he would comply with the court’s order but later changed his mind, saying that release of the photos might risk the lives of U.S. armed forces personnel.
At the same time, the DOJ told the court that a formal appeal by a June 9 deadline could be unnecessary if Congress quickly passes the Detainee Photographic Records Protection Act of 2009.
That measure is supported by the White House and was passed by the Senate on May 2. It would forbid disclosure of photographs taken between Sept. 11, 2001, and Jan. 22, 2009, "relating to the treatment of individuals engaged, captured, or detained after September 11, 2001,” by U.S. Armed Forces in operations outside the U.S. if “the defense secretary and the chairman of the Joint Chiefs of Staff have determined would endanger military personnel if released.”
Earlier this year Obama Attorney General Eric Holder rescinded Bush-era FOIA guidelines and replaced them with new rules to preserve FOIA's purpose of making public important information about the workings of the government.
In the wiretapping case, lawyers for a now-defunct Saudi charity claim they were victims of electronic spying by the government. A federal judge ordered the Obama administration to disclose documents relating to that charge The wiretapping allegedly took place as part of the so-called “terrorist surveillance program,” which was initiated by President George W. Bush following the 2001 terrorist attacks.
The DOJ, responding to a federal judge’s inquiry into whether the administration should be sanctioned for “failing to obey the court’s orders,” refused to turn over the documents and asked the court for permission to appeal its decision.
It urged the court to permit appellate review over the fundamental and significant separation of powers questions presented before any disclosure or risk of disclosure in further proceedings,” Anthony Coppolino, the DOJ’s special litigation counsel, wrote to Federal Circuit Court Judge Vaughn Walker.
A DOJ spokesman said sanctions were unwarranted because only the government can decide whether to disclose documents it believes are state secrets.
The lawsuit was brought in San Francisco by two American lawyers who claim their telephone calls were illegally intercepted by the National Security Agency (NSA) under the Bush administration. The lawyers represent the Al-Haramain Islamic Foundation, a charity that the Treasury Department claims was linked to terrorism.
Jon Eisenberg, the attorney for the two American lawyers, told Judge Walker at the time that the purpose of the lawsuit was to “obtain an adjudication of the legality of President George W. Bush’s warrantless electronic surveillance program and, more broadly, the Bush administration’s expansive theories of presidential power.”
Bush claimed that his war powers gave him the authority to eavesdrop on Americans’ electronic communications without warrants.
Eisenberg told us, “The DOJ attorneys repeat all the same arguments that Judge Walker has already rejected. They're treating Judge Walker as if he were irrelevant.”
The San Francisco lawsuit began when the government accidentally sent the plaintiffs documents that showed their overseas communications with Al-Haramain officials were intercepted without warrants. The pair sued, but was forced to return the documents because they were marked “top secret.”
In the Al-Haramain case, the Bush Administration’s Treasury Department found that the group was funneling money to terrorists in Chechnya and shut it down. But the government inadvertently released a classified document to the group’s lawyers. The lawyers contend that this document revealed that the government had been wiretapping both the organization and its lawyers without a warrant.
The organization sued the Bush Administration. But when the case came to court in 2006, the government invoked the so-called “state secrets privilege,” claiming that the case could not go forward because it would reveal information that would compromise national security.
But Judge Walker rejected the government’s claims. He ruled that the president could not invoke the state secrets privilege to conceal the evidence and dismiss the case.
Al-Haramain’s lawyers said they needed the classified documents to represent their clients. They said they were surprised to see the Obama administration arguing so vigorously for the same expansive Bush-era view of executive power.
Al-Haramain lawyer Eisenberg told us, “I anticipated that the Obama Department of Justice would take a more reasonable approach to moving forward with litigating this case in a manner that doesn’t jeopardize national security, which I think can be easily done.”
“They’re taking as hard a line as the Bush administration did on state secrets,” he said. “If anything, they’re being more aggressive about it.”
“In three years of litigating this case,” Eisenberg added, I'd come to expect this sort of thing from the Bush Department of Justice, but I'm astounded to see the new Obama DOJ continuing down the same path. So far, at least, we're not seeing any ‘change we can believe in’ regarding presidential abuse of the state secrets privilege.
Obama has ordered a DOJ task force to study the government’s use of the state secrets privilege. The Administration of George W. Bush invoked the privilege more than any other government in U.S. history.
In 2005, President George W. Bush admitted authorizing electronic surveillance of U.S. persons without first obtaining warrants from the FISA Court. President Bush said that he secretly ordered the NSA to eavesdrop on Americans with suspected ties to terrorists because it was "critical to saving American lives" and "consistent with U.S. law and the Constitution."