When Does Obama’s Transparency Begin?

By William Fisher

A court case accusing the government of indiscriminately wiretapping ordinary American citizens – coupled with legislation now making its way through Congress – could produce another major headache for President Obama.

The central issue in the latest court case is the government’s use of the so-called “State Secrets Privilege” – the claim that presenting certain evidence in open court would endanger U.S. national security – to suppress evidence of government wrongdoing.

Both the Bush and Obama administrations have invoked the privilege numerous times not simply to suppress particular pieces of evidence – its original intent -- but to have entire lawsuits thrown out altogether.

President Obama’s headache may stem from his pledges -- both during the campaign and currently -- that he would make open government and transparency the hallmarks of his administration. But, in court cases, his lawyers have followed paths identical to those used by George W. Bush’s Justice Department. This approach to secrecy, manifested in his use of the state secrets doctrine, has triggered widespread disappointment among the progressive wing of his supporters.

These supporters are pushing hard for passage of legislation now wending its way through congress that would impose stricter limits on use of the privilege. Obama has not yet endorsed either the Senate or the House legislation.

But, according to Kevin Bankston, an attorney with the Electronic Frontier Foundation (EFF), advocates for both bills are working closely with the White House and it is likely that a bill will emerge that Obama would be comfortable signing.

However, given the legislative calendar for the rest of this session of Congress, whether the legislation will come up for a vote in this sessions remains unclear. And gaining bipartisan support, especially in the Senate, will likely be an uphill hike.

In the latest case, Shubert v. Obama, a class action brought by three Brooklyn residents, the claim is that the National Security Agency (NSA) has an ongoing dragnet surveillance program spying on the telephone and
e-mail communications of ordinary Americans. The case was originally filed in 2007 and recently amended.

The government moved to dismiss the case based on state secrecy – the first use of the state secrets privilege under the Obama Administration's "new" state secrets policy. Attorney General Eric Holder, whose Department of Justice (DOJ) has been conducting a review of the state secrets policy, explained the use of the privilege in the Shubert case.

He said, “The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security. Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.”

But critics were quick to challenge him.

Attorney Bankston said that in the Obama’s court filing, it “attempted to dress up in new clothes its embrace of one of the worst Bush Administration positions — that courts cannot be allowed to review the National Security Agency's massive, well-documented program of warrantless surveillance. In doing so it demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege.”

He added, “The motion amounted to a rehashing of the exact same state secrecy arguments originated by the Bush Administration and pressed by the Obama Administration…that any attempt to have the courts rule on the legality of the NSA program would harm national security and that the courts should be blocked from considering whether the surveillance is legal or constitutional.”

The San Francisco-based Electronic Frontier Foundation focuses on issues of free speech, privacy, innovation, and consumer rights, and has brought many of the lawsuits challenging govenrment secrecy.

Meanwhile, Congressional efforts to curb the use of the state secrets privilege were moving through the House and Senate. In the Senate, the State Secret Protection Act is modeled on existing protections and procedures for handling secret evidence. Specifically, the bill would require a court to make an independent assessment of the privilege claim, and would allow evidence to be withheld only if "public disclosure of the evidence that the government seeks to protect would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the United States."

The bill has been approved by the Senate Judiciary Committee, whose chairman, Democratic Senator Pat Leahy of Vermont, has been a long-time advocate of the measure. The bill was introduced by Leahy, along with felloe Democrats Arlen Specter of Pennsylvania, Russ Feingold of Wisconsin, and, shortly before his death, Edward M. Kennedy of Massachusetts.

In the House, the Judiciary Committee is taking the first steps considering a similar reform measure the form of the State Secret Protection Act of
2009. Its sponsors include Democratic Congressmembers Jerrold Nadler of New York, Thomas Petri of Wisconsin, Judiciary Chairman John Conyers, Jr. of Michigan, Bill Delahunt of Massachusetts, and Zoe Lofgren of California.

Nadler, the powerful Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, was sharply critical of the DOJ action in the Shubert case.

"The Administration’s decision this week to adopt its predecessor’s argument that the state secret privilege requires the outright dismissal of a case challenging rendition to torture was a step in the wrong direction and a
reminder that legislation is required to ensure meaningful review of the state secret privilege," said Rep. Nadler.

Some of Obama’s most steadfast supporters have publicly disagreed with the president on this issue. For example, Senator Russ Feingold produced a “report card” on Obama’s first hundred days in office and cited the fact that Obama had invoked the state secrets privilege in three cases. He gave Obama a "D" on state secrets, and characterized his record as "troubling."

Obama’s pledge to make the government more open and accountable, coupled with his use of the state secrets privilege and other actions resulting in limiting transparency, have left many of his progressive supporters disappointed.

During his campaign for the presidency, the Obama-Biden website included state secrets as part of "The Problem" that President Obama would address, complaining that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."

Yet in his first 100 days, the Obama administration invoked the state secrets privilege in three cases: Al Haramain Islamic Foundation v. Obama, Mohammed v. Jeppesen Dataplan, and Jewel v. NSA. In each of these cases, the Obama’s lawyers DOJ followed exactly the same reasoning as Bush’s.

The Al-Haramain Islamic Foundation, the Oregon chapter of an Islamic charity, sued the Bush Administration for the illegal surveillance of the organization and its attorneys as part of the NSA warrantless wiretapping program. The case was based on a secret document that was inadvertently disclosed by the government that, according to the plaintiffs, demonstrates that they were subjected to unlawful electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act (FISA). Following Obama’s election, DOJ lawyers took the same position as their predecessors.

The same is true in another case, Jewel v. NSA, in which the Electronic Frontier Foundation (EFF) is suing the NSA and other government agencies on behalf of AT&T customers to stop what it calls the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. Jewel v. NSA is aimed at ending the NSA’s dragnet surveillance of millions of ordinary Americans and holding accountable the government officials who illegally authorized it. Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

In April, the Obama administration moved to dismiss Jewel, claiming that litigation over the wiretapping program would require the government to disclose privileged "state secrets,” and that they were immune from suit. These are essentially the same arguments made by the Bush administration.

In the Jeppesen case, five British residents – all of whom were imprisoned at Guantanamo Bay – are suing a Boeing subsidiary called Jeppesen DataPlan for assisting the Central Intelligence Agency (CIA) with logistics for the flights to Afghanistan and CIA secrets prisons where they were held incommunicado and tortured. The men claim they were victims of the U.S. “extraordinary rendition” program – and that Jeppesen was complicit in the process. In this case, a federal appeals court has rejected the Obama Administration’s assertion of state secrets and ruled that the case can go forward.

And, in one of the rare occasions where judges reject the government assertion of state secrets, a federal judge in Chicago recently disagreed with the government's use of the privilege in a case involving the Department of Homeland Security's terrorist watch list, saying the plaintiff, a local businessman, could find out whether his name is on the list.

The first known use of the state secrets privilege came in a 1953 case called United States v. Reynolds. In that case, the widows of three crew members of a B-29 Superfortress bomber that had crashed in 1948 sought accident reports on the crash, but were told the release such details would threaten national security by revealing the nature of the bomber's top-secret mission.

The Supreme Court ruled that the executive branch could bar evidence from the court if it deemed that its release would impair national security. In 1996, the accident reports in question were declassified and released, and when discovered in 2000 were found to contain no secret information. They did, however, contain information about the poor condition of the aircraft itself, which would have been very compromising to the Air Force's case. Many legal experts have said that the government abused secrecy in this landmark case, which was not about national security but about protecting the incompetence of government officials.

Since then, the privilege was rarely used until the administration of George W. Bush, which is generally regarded as one of the most secretive presidencies in U.S. history. The Bush Administration invoked the state secrets doctrine numerous times in a variety of cases. Some of the best known include:

Sibel Edmonds: The privilege was invoked twice against Sibel Edmonds. The first invocation was to prevent her from testifying that the Federal Government had foreknowledge that Al-Qaeda intended to use airliners to attack the United States on September 11, 2001; the case was a $100 trillion action filed in 2002 by six hundred 9/11 victims' families against officials of the Saudi government and prominent Saudi citizens. The second invocation was in an attempt to derail her personal lawsuit regarding her dismissal from the FBI, where she had worked as a post-9/11 translator and had been a whistleblower. Edmonds took her case all the way to the Supreme Court, and lost.

Khalid El-Masri: In May 2006, the illegal detention case of Khalid El-Masri was dismissed based on the privilege, which was invoked by the Central Intelligence Agency (CIA). Khalid El-Masri alleged that he was falsely held by the CIA for several months (which the CIA acknowledges) and was beaten, drugged, and subjected to various other inhumane activity while in captivity. He was ultimately released by the CIA with no charge ever being brought against him by the United States government. The U.S. District Court dismissed the case because, according to the court, the simple fact of holding proceedings would jeopardize state secrets, as claimed by the CIA. On March 2, 2007, the United States Court of Appeals for the Fourth Circuit affirmed. On October 9, 2007, the Supreme Court declined to hear an appeal of the Fourth Circuit's decision, letting the doctrine of state secrets privilege stand.

Maher Arar: The privilege was invoked against a case where Maher Arar, a wrongfully-accused and tortured victim, sought to sue Attorney General John Ashcroft for his role in deporting Arar to Syria to face torture and extract false confessions. It was formally invoked by Deputy Attorney General James B. Comey in legal papers filed in the United States District Court for the Eastern District of New York. The invocation read, "Litigating [the] plaintiff's complaint would necessitate disclosure of classified information", which it later stated included disclosure of the basis for detaining him in the first place, the basis for refusing to deport him to Canada as he had requested, and the basis for sending him to Syria.

In the Shubert wiretapping case, the appellants claim the government is engaged in a broad surveillance “dragnet” that monitors ordinary Americans’ phone and Internet communications without a warrant and without any suspicion that the targets have done anything wrong.

Allegations that this was actually occurring was first introduced in the case of Jewel v. NSA, brought by the Electronic Frontier Foundation last year. In that case, a former AT&T telecommunications technician named Mark Klein submitted a sworn declaration describing how AT&T routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.

Only employees cleared by the NSA were allowed to enter the room. The government has likewise moved to dismiss that case on state secrets grounds.

Another whistleblower, former NSA Intelligence Analyst Russell Tice, told Keith Olbermann on MSNBC that “the NSA had access to all Americans’ communications – faxes, phone calls, computer communications. They monitored all communications.”

The Jewel case is still pending in the same federal district court in California where the Shubert case has been filed. Oral arguments in the government’s motion to dismiss the Shubert case are scheduled for December 15 before Judge Vaughn R. Walker.

The Obama Administration’s approach to open government has disappointed its supporters in other way as well as in court. For example, just last week,
the government filed a brief in which Secretary of Defense Robert Gates invoked his authority to block the release of photos depicting the abuse of detainees in U.S. custody overseas.

The development came as part of a five-year-old Freedom of Information lawsuit brought by the American Civil Liberties Union (ACLU) demanding the release of records, including photographs, related to the abuse of prisoners. Secretary Gates was granted the authority to exempt certain images from disclosure under the Freedom of Information Act (FOIA) as part of the Homeland Security appropriations bill signed by President Obama last month.

An amendment to the bill grants the Defense Secretary authority to suppress certain photographs deemed harmful to national security. After the bill was signed into law, the ACLU urged Gates not to invoke the authority to block the release of the photos.

“Unfortunately, not only did Secretary Gates invoke the authority, but his blanket certification states that it applies to all of the photos, failing to provide the individualized assessment that the amendment's language requires. The government also failed to provide any basis for the claim that disclosure of the photos would harm national security,” the ACLU said in a statement.” The organization said it plans to file a responsive brief.

On the issue of government transparency in general, it appears that policy-makers on both sides of the aisle, as well as the public at large, are still trying to figure out how their new president thinks about such issues.

His supporters were cheered by his release of the so-called “torture memos” prepared by the Bush Administration’s Office of Legal Counsel. But they were dismayed by his cool reception to a “truth commission” to investigate possible crimes committed by the previous administration, his declaration that there would be no prosecutions of CIA officers who used what they believed to be legal interrogation techniques, and his oft-expressed wish to look forward, not backward.

And they continue to be baffled by his continuing use of the state secrets defense, wondering whether his objective is protecting national security, shielding Bush Administration officials from accountability, or preserving this executive prerogative for himself and future presidents.