Open Government: We Live in Hope

By William Fisher

Advocates for greater freedom of information are expressing approval of the Obama Administration’s "Open Government Directive" – but some are sounding cautionary notes that executive agencies are still hiding behind “national security” to conceal government misconduct.

The White House Office of Management and Budget (OMB) issued its "Open Government Directive" yesterday, instructing government agencies and departments to take specific actions to increase "transparency, participation and collaboration" in government, with the aim of creating "an unprecedented and sustained level of openness and accountability in every agency."

The directive is intended to make good on the pledge of transparency President Barack Obama made during his first week in office.

The directive establishes deadlines for action and imposes guidelines for publishing government information and improving the quality of that information. It also orders each agency to establish an "Open Government Plan" that details how it will incorporate transparency, opportunities for public participation and inter-agency collaboration into its core mission objectives.

The directive does not apply to classified security information and makes an exception for "information whose release would threaten national security."

It is this latter condition that concerns civil libertarians. Jameel Jaffer, Director of the National Security Project for the American Civil Liberties Union (ACLU), said, “We remain concerned that executive agencies are invoking national security concerns as a pretext to suppress records that relate to government misconduct. We are particularly concerned about the Defense Department's refusal to release photos relating to the abuse of prisoners, the CIA's refusal to release information about black sites overseas and the Justice Department's refusal to release the legal memos that supplied the basis for the Bush administration's warrantless wiretapping program.”

He said, “While we appreciate the steps that the Obama administration has taken to increase government transparency, the administration's stated commitment to transparency has not yet translated into real change on information relating to national security policy.”

While President Obama has talked about instituting “a new era of transparency” since his first days in office, in many instances his Department of Justice has followed precedents set by Obama’s predecessor, George W. Bush. These have included invoking the “state secrets privilege” as a way of stopping court cases brought by people who claim to have been injured by U.S. Government actions. These injuries range from “Middle Eastern-looking” men being rounded up and imprisoned in the days following the terrorist attacks of September 11, 2001, to charges from others that they were victims of the “extraordinary rendition” program run by the Central Intelligence Agency (CIA).

Extraordinary rendition refers to a program in which people are kidnapped by the CIA in countries overseas and then sent to third countries where they are imprisoned, usually denied access to lawyers or to the International Committee of the Red Cross, and tortured by their jailers.

Despite these flaws, the ACLU’s Jaffer said he welcomed the release of the Open Government Directive, “particularly because it sets out specific, concrete steps that agencies must take in order to fulfill the Obama administration's stated goal of increased government transparency. As the directive itself makes clear, the principles of transparency, participation and collaboration are fundamental to our democracy.”

The directive is comprised of four main components centered on four themes – publishing information; creating a culture of openness; improving data quality; and updating policies to allow for greater openness. Each section tasks agencies and other key offices with specific goals, complete with deadlines.

A major new requirement in the directive is for each agency to develop specialized Open Government Plans within the next 120 days. These plans must detail exactly how each agency will improve transparency and integrate public participation and collaboration into its activities. An attachment to the directive lays out the required components of the plan.

Agencies will also be required to establish an Open Government webpage on their sites and permit public participation on the development of the plans, as well as gather input on transparency issues on an ongoing basis. The White House website will also establish an Open Government Dashboard to track agency plans and performance. These will be the places to watch to see how well the next step in government openness proceeds.

It also requires agencies to make use of modern technology to take a proactive approach to distributing information. Today, people are often forced to file Freedom of Information Act (FOIA) requests and to sue Federal agencies to compel their compliance. Federal agencies process thousands of FOIA requests each year.

The directive was welcomed by OMB Watch, one of a group of private not-for-profit advocacy groups that helped the administration draft it.

Gary D. Bass, the organization’s executive director, noted that the new directive marks a new direction for the executive branch. "The directive’s presumption of openness – certainly a positive step – reflects a thoughtful understanding that achieving the goal of transparency requires a cultural shift in the way government operates." stated Bass. "The directive’s scope and specificity blends both rigorous timelines and agency flexibility that will likely achieve significant improvements in government openness across agencies. The key will be how the public, the White House, and federal agencies work together in implementing the directive." Bass added.

The content of the directive reflects many of the transparency recommendations collaboratively developed by the right-to-know community during a two-year process coordinated by OMB Watch. Those 70 detailed recommendations were delivered to the Obama transition team in a report called Moving Toward a 21st Century Right-to-Know Agenda. Among those recommendations were requests for creating incentives for openness, interagency coordination, and publication of high-priority data that is currently unavailable – all of which are addressed in the new directive.

The organization said the task before government now is to implement the new policy prescriptions.

Immigrant Detention System Broken

By William Fisher

"In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico.... All my evidence and stuff that I need is right there in New York. I've been trying to get all my case information from New York ... writing to ICE to get my records. But they won't give me my records; they haven't given me nothing. I'm just representing myself with no evidence to present." – (name withheld), writing from the Otero County Processing Center, Chaparral, New Mexico.

So reads testimony from one of the increasing number of immigrants transferred by the Department of Homeland Security (DHS) to detention centers far from where they were apprehended – making it virtually impossible for them to retain their records, communicate with family members, or hire lawyers to contest their deportation.

The number of individuals held in hundreds of different detention facilities by the DHS’s Immigration and Customs Enforcement (ICE) in fiscal year 2009 is estimated to have reached 369,483, more than double what it was a decade earlier. A new analysis of millions of government records shows that to handle this pronounced surge in detainees, ICE made 1.4 million detainee transfers in the decade from 1999 through 2008 -- 53 percent of them since 2006.

An increasing proportion of all detainees are being transferred. In FY 1999, one out of every five (19.6%) of the detainees was moved from one detention facility to another. During the first six months of FY 2008, the latest period for which complete data are available, the majority (52.4%) of detainees were transferred.

Almost as startling was the growth in the percentage of individuals who were subjected to multiple transfers — starting at one detention facility, being transferred to a second, and then again (and sometimes again and again) to other detention locations. Ten years ago only one out of twenty detainees experienced multiple transfers (5.6%). In FY 2008, one out of every four detainees (24%) was subject to multiple transfers.

This analysis is based upon previously unavailable data obtained by the Transactional Records Access Clearing House (TRAC) at Syracuse University and Human Rights Watch (HRW), which has published a new report, “Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States."

According to Alison Parker, HRW’s U.S. deputy director, “ICE is increasingly subjecting detainees to a chaotic game of musical chairs. And it’s a game with dire consequences since it may keep them from finding an attorney or presenting evidence in their defense.”

The human consequences of detainee transfers can be devastating. One detainee told Human Rights Watch that after living in upstate New York for
10 years with his wife and four children, ICE said he was deportable because of an old marijuana possession conviction, for which he had paid a fine and never served jail time. Initially detained in New York City, he was sent, just days later, to a detention center in New Mexico.

“In New York when I was detained, I was about to get an attorney through one of the churches, but that went away once they sent me here to New Mexico,” a detainee said from the Otero County Processing Center in Chaparral, New Mexico. “All my evidence and stuff that I need is right there in New York. I’ve been trying to get all my case information from New York … But they won’t give me my records, they haven’t given me nothing. I’m just representing myself with no evidence to present.”

ICE detains people suspected of violating civil immigration laws, not criminal laws. Many immigrants are first arrested and detained in major cities like Los Angeles or Philadelphia, places where immigrants have lived for decades and where their family members, employers, and attorneys also live. Days or months later, with no notice, many of these immigrants are loaded onto planes for transport to detention centers in remote corners of states such as Texas, California, and Louisiana (the three states most likely to receive transfers), the report found.

The average length of detention by ICE is 30 days, including the 25 per cent of detainees apprehended at the border and sent home within a day. But about 2,100 immigrants are detained for a year or more.

Says Rebecca Schreve, an immigration attorney in El Paso, Texas, "The transfers are devastating, absolutely devastating. [Detainees] are loaded onto a plane in the middle of the night. They have no idea where they are, no idea what [US] state they are in. I cannot overemphasize the psychological trauma to these people. What it does to their family members cannot be fully captured either. I have taken calls from seriously hysterical family members - incredibly traumatized people - sobbing on the phone, crying out, ‘I don't know where my son or husband is!'"

Detained immigrants have the right, under both US and international human rights law, to be represented in deportation hearings by an attorney of their choice and to present evidence in their defense.

But once they are transferred, immigrants are often so far away from their lawyers, evidence, and witnesses that their ability to defend themselves in deportation proceedings is severely curtailed, the report found.

"Immigrant detainees should not be treated like so many boxes of goods - shipped to the most convenient place for ICE to store them," HRW’s Parker said, adding, "We are especially concerned that the transferred detainees may find that their chances of successfully fighting deportation or gaining asylum from persecution have just evaporated."

The federal Court of Appeals for the Fifth Circuit (which covers Louisiana, Mississippi, and Texas) has jurisdiction over the largest number of the transferred detainees. Those transfers are of particular concern, HRW said, because that court is widely known for decisions that are hostile to non-citizens and because the states within its jurisdiction collectively have the lowest ratio of immigration attorneys to immigration detainees in the country.

HRW acknowledges that some detainee transfers are inevitable, but says that ICE and Congress should use reasonable and rights-protective checks on detainee transfers as the best state criminal justice systems do. The report recommends concrete steps to help create such a system.

Although ICE has recently announced plans to revamp its detention system, which may provide an opening for reforms, the agency previously has rejected recommendations to place enforceable constraints on its transfer power.

A number of factors account for the dramatic increase in the numbers of detainees. In 1996, the immigration law was changed to require the detention of people convicted of crimes, including misdemeanors, and all asylum applicants. Unlike criminal defendants, these immigrants are not entitled to a bond hearing to determine if they are flight risks.

According to a recent ICE review of the detention system, about 11 percent of immigrant detainees in custody had committed violent crimes. “The majority of the population is characterized as low custody, or having a low propensity for violence,” the ICE report concluded.

Intensified law enforcement has also played a role in increasing the number of detainees. For example, ICE has expanded its so-called 287(g) program, named for a section of the immigration law, which allows local law enforcement officers to arrest and detain anyone suspected of violating federal immigration laws.

ICE has also expanded the “Secure Communities” program, which requires local police to check the immigration status of everyone booked into a local jail. Those convicted are deported after serving their sentences.

DHS, which recently received $200 million to expand the “Secure Communities” program, estimates that “tens of thousands” more immigrants will be deported under the program in 2010.

ICE has responded to the TRAC and Human Rights Watch reports. “ICE is in the process of fundamentally overhauling our immigration detention system to establish consistent standards across the country, prioritize risk, strengthen oversight and increase efficiency,” says the agency’s statement.

“ICE will also soon submit a plan to Congress to implement an alternatives to detention program nationwide for low-risk individuals. These steps will not only enhance accountability and safety in our system, but will also reduce detainee transfers that can separate detainees from counsel and prolong their legal proceedings.”

Earlier, ICE acknowledged that it had serious problems with the conditions under which detainees are held. A report from Dr. Dora Schriro, who was then Director of ICE’s Office of Detention Policy and Planning, concluded that ICE needed to do a better job of assessing the risks associated with individual detainees in order to house and treat them appropriately.

ICE detention centers – a collection of hundreds of Federally-owned facilities, county and city jails, and privately-run prisons – have been severely criticized for substandard physical and medical conditions. ICE has acknowledged these conditions.

The recent ICE report acknowledges that attorneys representing detainees have complained that their clients are often transferred to detention centers far away and without notice, making legal representation extremely difficult. The report therefore only recommends that those who are represented by attorneys “should not be transferred outside the area unless there are exigent health or safety reasons, and when this occurs, the attorney should be notified promptly.”

The findings in the HRW report were confirmed by other sources. One is a bipartisan study group, the Constitution Project, whose members include Asa Hutchinson, a former DHS under secretary, and the DHS Inspector General.

The group called for sweeping changes in ICE policies and amendments to immigration law, including new access to government-appointed counsel for many of those facing deportation. It recommended shrinking the use of detention, in part by adding more constitutional safeguards required in the criminal justice system.

“None of the recommendations being made should in any way compromise national security,” Hutchinson said in an interview with the New York Times before he presented the report at the National Press Club in Washington. “It simply allows for a more humane and more efficient system,” he said.

A separate report by the DHS Inspector General found that ICE detainee transfers were so disorganized that some detainees arrived at a new detention center without having been served a notice of why they were being held, or despite a high probability of being granted bond, or with pending criminal prosecutions or arrest warrants in the previous jurisdiction.

The investigation found that the consequences included a loss of access to legal counsel and relevant evidence; additional time in detention; and “errors, delays and confusion for detainees, their families, legal representatives” and the immigration courts. Some detainees were transferred with files lacking a photo and a security classification, field inspectors found.

According to the inspector general, it is estimated that in the future ICE will detain more than 442,000 people a year — more than double the number in 2003, the year ICE began its operations. Prior to the formation of the Department of Homeland Security, ICE was known as the Immigration and Naturalization Service (INS).

The Irony of Unintended Consequences

By William Fisher

Thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing — are being labeled “terrorists” and their applications for protection are being denied or delayed because of overly broad “terrorism” provisions in the Immigration and Nationality Act (INA).

These are the conclusions of a report by Human Rights First (HRF), a legal advocacy organization. They come as Homeland Security Secretary Janet Napolitano, the White House point person on immigration, is calling on Congress to provide temporary worker programs and a path to citizenship for 12 million unauthorized workers when it takes up a reform bill next year.

Napolitano is optimistic that immigration reform could pass in an election year, because she says border security goals have been met and the economic downturn has decreased unauthorized immigration significantly since a bipartisan bill died in the Senate two years ago.

But Congressional Republicans dispute the administration's claims that the border has been secured, and have repeated their opposition to citizenship for unauthorized immigrants.

Earlier, Napolitano outlined the efforts her department plans to make to improve and reform conditions for thousands of refugees currently being held in detention centers, county jails, and privately run prisons, most of them awaiting decisions on their applications for asylum in the U.S. Many of these centers, which are run by DHS’s Immigration and Customs Enforcement agency (ICE), have been severely criticized for denying detainees legal due process and basic medical care.

The HRF report -- Denial and Delay: The Impact of the Immigration Law’s ‘Terrorism Bars’ on Asylum-Seekers and Refugees in the United States -- describes the adverse and unintended consequences the overly broad “terrorism” provisions in the Immigration and Nationality Act (INA) are producing for asylum-seekers and refugees.

The report says that more than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.

Anwen Hughes, Senior Counsel in HRF’s Refugee Protection Program, told Truthout that there are currently over 7,500 cases pending before the Department of Homeland Security. She said these cases are “on indefinite hold based on some actual or perceived issue relating to the immigration law’s ‘terrorism’-related provisions.” The overwhelming majority of the cases are applications for permanent residence or family reunification filed by people who were granted asylum or refugee status several years ago and have been living and working in the United States since then,” she said.

She added that there is a need for a comprehensive review of the program.

HRF’s report cites a number of examples of refugees who have been characterized as “terrorists” under the legal definitions currently in use:

- A refugee from Burundi, who was detained for 20 months in a succession of county jails because the U.S. Department of Homeland Security, and the immigration judge who would otherwise have granted him asylum, took the position that he had provided “material support” to a rebel group because armed rebels robbed him of four dollars and his lunch.

- A young girl kidnapped at age 12 by a rebel group in the Democratic Republic of the Congo, used as a child soldier, and later threatened for advocating against the use of children in armed conflict, who has been unable to receive a grant of asylum, as her application has been on hold for over a year because she was forced to take part in armed conflict as a child.

- A man who fled political and religious persecution in Bangladesh, who has had his application for permanent residence placed on indefinite hold because he took part in his country’s successful struggle for independence—in 1971.

--The minor children of members of the democratic opposition from Sudan who were granted asylum in the United States years ago, who have been prevented from becoming permanent residents because the peaceful political activities of their parents have been deemed to constitute “material support to a terrorist organization.”

HRF says the provisions of the INA “are being applied to refugees who were associated with groups that the U.S. government does not consider to be ‘terrorist organizations’ in any other context. The INA’s sloppy definition of a ‘Tier III terrorist organization’ is causing groups that the United States does not treat as ‘terrorist’ in any other context to be defined in this way.”


The INA defines “terrorist activity” as any unlawful use of a weapon for any purpose other than personal enrichment and a “Tier III terrorist organization” as any group of two or more people who engage in—or has a subgroup that engages in—“terrorist activity.” These laws are overly broad, and for the past several years the immigration agencies have been interpreting them in an increasingly expansive way.

As a result, the report asserts, thousands of legitimate refugees and asylum seekers—who pose no danger to the United States and who have committed no acts of wrongdoing—have been labeled “terrorists” and had their applications for protection denied or delayed.

While the INA also provides broad authority to the Secretary of Homeland Security and the Secretary of State, in consultation with the Attorney General, to grant “waivers” of most of the terrorism-related inadmissibility grounds, HRF says “the federal agencies involved have implemented this authority in a piecemeal and centralized fashion that has proved to be unworkable as a long-term, meaningful solution.”

Examples of groups labeled “Tier III terrorist organizations” include:

- - Iraqi groups who rose up against Saddam Hussein in the 1990’s, including those who took part in the failed uprising at the end of the Gulf War of 1991 that was encouraged by the first President Bush;

-- Iraqi groups that later fought against Saddam Hussein’s government at any other time, including in conjunction with the Coalition forces that ultimately overthrew his regime in 2003;

- - Afghan mujahidin groups that fought the Soviet invasion in the 1980’s, with U.S. support;

- - The Democratic Unionist Party and the Ummah Party, two of the largest democratic opposition parties in Sudan, many of whose members were forced to flee the country in the years after the 1989 military coup that brought current President Omar Al-Bashir to power;

- - Groups that fought the ruling military junta in Burma and were not included in the 2007 legislation that removed the Chin National Front and other Burmese insurgent groups from the scope of the Tier III definition;

Many of the refugees affected by the “Tier III” definition’s overbreadth were involved only in peaceful political activity in connection with groups that are now deemed to be “terrorist organizations” for immigration-law purposes, the report says..

It adds, “The federal immigration agencies charged with applying these laws—the Department of Homeland Security, the Department of Justice, and the Department of State — have also been interpreting all these provisions in a very expansive way. The immigration law’s ‘material support’ bar, for example, is being applied to minimal contributions, to people who were forced to pay ransom to armed groups, to doctors who provided medical care to the wounded in accordance with their medical obligations, and to persons who engaged in other forms of lawful activity. These interpretations have exacerbated the impact of the law’s overbroad definitions.”

The report’s policy recommendations focus on the scope and application of the INA’s “terrorism”-related provisions on those individuals whom Congress intended those provisions to target: people who threaten U.S. national security and those who have engaged in or supported acts of violence that are inherently wrongful and condemned under U.S. and international law. HRF is calling on Congress to:

-- Eliminate the statutory definition of a “Tier III” terrorist organization, which has led to numerous unintended consequences but is not needed as an enforcement tool against its intended targets;

-- Amend the immigration law’s definition of “terrorist activity” so that it (a) targets only the use of violence for purposes of intimidation or coercion (of a civilian population or of a government or an international organization), and (b) no longer applies to uses of armed force that would not be unlawful under international humanitarian law;

-- Amend the immigration law’s definition of “material support” to make clear that it does not apply to acts done under coercion;

-- Eliminate the provision that makes a person inadmissible simply for being the spouse or child of a person inadmissible under the immigration law’s “terrorism”-related grounds;

-- Give waiver authority to the Attorney General for cases pending before the Department of Justice, with the provision that the Attorney General delegate this authority to the immigration courts;

In addition, the report says, the Departments of Homeland Security, Justice, and State should support its recommendations to Congress; interpret existing law consistently with its text and purpose, to target those who advance actual terrorist activity; and implement a more effective and fair approach to waivers.

The Irony of Unintended Consequences

By William Fisher


The Supreme Court has agreed to hear a case challenging a law that treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes.

The case is known as Holder v. Humanitarian Law Project, and is the first case to challenge a portion of the Patriot Act before the Supreme Court. The case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”

The plaintiffs, led by the Center for Constitutional Rights (CCR), charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime. The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.

The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the State Department.

Said CCR Cooperating Attorney David Cole, a law professor at the Georgetown University Law Center, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”

The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law. The Obama administration sought Supreme Court review of that decision.

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

Meanwhile, committees of the U.S. Senate and House of Representatives continue to debate three provisions of the USA Patriot Act that are due to expire on December 31

The expiring provisions are the roving wiretap authority, the so-called "section 215" business records orders, and the nicknamed "lone wolf" provision.

The roving wiretap authority expands the authority of the Foreign Intelligence Surveillance Court (FISC) by allowing it to order "roving" or multi-point surveillance. Previously, the Foreign Intelligence Surveillance Act (FISA) required a separate FISC authorization to tap each device a target used.

Section 215’s reference to Business Records substantially revised the authority under FISA for seizure of business records, including third party records of individuals' transactions and activities. Previously, the FBI could apply to the FISC for an order to seize business records of hotels, motels, car and truck rental agencies, and storage rental facilities. Section 215 broadened that authority by eliminating any limitation on the types of businesses or entities whose records may be seized. The recipient of the order may not disclose the fact that the FBI has sought or obtained records.

The nicknamed "Lone Wolf" authorization allows intelligence gathering of people not suspected of being part of a foreign government or known terrorist organization. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.

The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.

The Obama Administration has quietly endorsed the reauthorization of the provisions due to expire. The Senate Judiciary Committee has voted to make only minor changes to these measures, while the House of Representatives Judiciary Committee is seeking far more sweeping reforms.

The new legislation proposed by the House committee would permit the so-called “lone wolf” provision to sunset. It would also restrict the use of National Security Letters (NSLs). According to a Congressional Research Service report, NSLs “are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”

Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.

A jittery Congress passed The Patriot Act by a landslide 45 days after the 9/11 terrorist attacks with virtually no debate. It provides law enforcement and intelligence agencies with sweeping additional powers to thwart terrorist activities. The law was reauthorized in 2005.

The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.

Among its most outspoken critics is Chip Pitts, president of the Bill of Rights Defense Committee. He told IPS, “In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror -- and avoid being accused of being “soft on terror” -- brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed.”

He added, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”

Obama's Fifth Category: The "Untriable"

By William Fisher

In his talk at the National Archives in May, President Obama referred to five categories of prisoners currently held at Guantanamo Bay.

First, there are those who have violated American criminal laws and will be tried in federal courts. There may be as many as a dozen men in this category, five of whose trials were announced last week, including that of Khalid Sheikh Mohammed.

Second, there are detainees who violated the laws of war and who will be tried by the "new and improved" military commissions. Five prisoners were also designated for such trials last week and there is speculation that there are perhaps 25 more who fall into this category.

The third group consists of 21 detainees who have already been released by the courts.

Fourth, there are believed to be some 90 prisoners who are cleared for release and who can be transferred safely to other countries if such countries can be found.
So what is this "fifth category" of detainees? It consists of prisoners who are thought too dangerous to release, but who cannot be brought to trial.

According to The Washington Post, quoting an unnamed official, there are some 75 prisoners in this "fifth category." And the administration's position is that these people are untriable because the evidence against them was obtained through torture or because public trials would involve and potentially expose an unacceptable volume of classified material.

Which leaves the administration with the question of what to do with these people.
The Obama administration gave the human rights community apoplexy when it referred to "preventive detention." Now, it is simply saying that it's not going to seek any additional authority from Congress for such preventive detention. Which perhaps gives us a clue to the approach the administration has in mind. In a study by the Obama-friendly Center for American Progress, analyst Ken Gude suggests that the Obama administration "incarcerate detainees convicted in US criminal courts in maximum-security US prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan." (Emphasis mine.)

That latter group would presumably include the untriable. Which appears to create a neo-GITMO at Bagram in Afghanistan.

In an effort to make sense out of this maze of legal confusions, I contacted a group of people I consider to be some of the best minds in constitutional law. In my simplistic layman's way, I questioned the assertion that certain people can't be tried and opined that it seemed to me that anyone who is accused of a crime can - should, must - be tried for that crime, and can not be held indefinitely without a trial.

Here are some of their responses:

Marjorie Cohn, president of the National Lawyers Guild: The 75 aren't even being accused of crimes. If there isn't enough evidence against them besides statements that have been tortured out of them, they should be released. Judges and prosecutors who have tried terrorism cases in the United States say that the Classified Information Procedures Act effectively protects classified material. If there is probable cause to believe that someone has committed a crime, he should be charged and tried. If not, he should be released. Indefinite detention violates the International Covenant on Civil and Political Rights, a treaty the United States has ratified which makes it part of US law.

Jameel Jaffer, director of the National Security Program for the American Civil Liberties Union: We should be very skeptical of the proposition that there are prisoners who can't be prosecuted but are too dangerous to release. The United States has sweeping detention authority under both domestic law and international humanitarian law - authority that is broad enough to reach both terrorists and battlefield combatants. The criminal laws have been used to successfully prosecute not only people who have planned terrorist attacks but also people who have attended training camps or raised money for terrorist groups.

In criminal trials, the government can protect intelligence sources and methods by relying on the Classified Information Procedures Act. It's true that federal courts are unlikely to allow the government to rely on evidence derived from torture, but that's a problem with the government's evidence, not a problem with the courts. The courts reject that kind of "evidence" not only because torture is illegal but because evidence derived from torture is unreliable. And if such evidence is too unreliable to justify detention after trial, it's surely too unreliable to justify detention without trial.

Michael Ratner, president of the Center for Constitutional Rights: I do not think there is any place for preventive detention in a country that claims it is a democracy under the rule of the law. We opposed it under Bush and it looks no more legal when rewrapped by Obama. The constitution and international law mandates that people be charged and tried or released. The claim that some GITMO detainees can't be tried is a pretext that will usher in a scheme that is contrary to 225 years of US law. There is no middle ground when it comes to human freedom. The claim that some GITMO detainees can be held without charges and trial is an assertion I hoped never to hear in a country claiming it acts under the rule of law. Preventive detention is the road to perdition. It sets a precedent that will haunt our justice system for all time.

Gabor Rona, international legal director of Human Rights First: The notion that we can hold GITMO detainees under the laws of war is wrong - a misapplication of those laws. There is presently not one GITMO detainee whose detention is authorized by the laws of war. Only domestic law governs detention in wars that are not between two or more states. For that reason, and because the US does not have an administrative detention scheme (which I think would necessarily be unconstitutional, although not necessarily in violation of international human rights law) all GITMO detainees must be either charged or released.

David Cole, professor at the Georgetown University Law Center: I don't think there is an obligation to try an enemy combatant for a war crime while the conflict is ongoing. For example, we did not try many Germans responsible for war crimes until the war was concluded, and issues of secrecy were less complicated. And I'm sure there were many we did not try at all. So I don't think there is an obligation to try. There is an obligation to ensure that anyone detained be provided a full and fair hearing on his status, that the definition of "enemy combatant" be defined narrowly, and that all detainees be treated humanely. But not that they be tried.
Brian J. Foley, visiting associate professor of law, Boston University: Ultimately this shows that the problem is that terrorism is something between crime and war. Though we know that the most effective way of combating terrorism groups is through police method, it seems akin to fighting "organized crime." Given that, then it seems that the court system we use should be geared more toward the criminal paradigm, which ultimately tests the government's claims that a person not wearing an enemy uniform has harmed, or is planning to harm, citizens.

The Obama Administration wants to be able to make those claims about people but not have them ever subjected to testing. We know that police often identify the wrong person; indeed, our court system itself is not perfect at correcting such government errors, as our history of wrongful convictions shows. So there needs to be testing of EVERY government claim that someone is planning an attack and/or is dangerous and therefore must be imprisoned. It is very often disputable whether someone is planning terrorist acts, ESPECIALLY when the only evidence is evidence gained by torture or is so-called "classified" evidence.

Under the Obama plan, a US government acting in error or in bad faith can detain forever anybody it claims is planning a terrorist attack. We have to be clear that the Administration is claiming a sweeping power with no check, a power - lifelong detention - that is rare in criminal law and rare in war (given that, unlike most wars, the GWOT will never end). The GWOT is Big Government's BFF ("best friend forever") and is the mortal enemy of democracy and human rights. This plan is the ultimate version of the government saying, "Just trust us" - a trust that is anathema to the spirit of the Founding Fathers.

The government appears afraid to take any risk at all that someone released might cause harm. But the assumption that someone might cause harm is assumption based on mere faith and belief, not on evidence. The bottom line is this makes no sense: the evidence gained by coercion is likely unreliable, and the secret evidence might be erroneous or even manufactured for political ends. Ultimately it's an epistemological question: How can you know someone is dangerous if it is based on evidence you obtained through coercion and is therefore unreliable, or if it is based on evidence you are afraid to have tested - again, we know our intelligence agencies are not perfect and make mistakes. The fact of the matter is that we have a system and a widely-held norm (among many nations and internationally) that says "prove it" to a government when the government wants to take away somebody's life or liberty. The real question at the heart of this whole dispute - a question that no one seems to want to ask openly, is, "Are we brave enough to adhere to such norm to prevent the many ills that can flow from giving the government the power to detain people indefinitely on its own say-so?" I don't think that the people arguing for this power are brave enough; I think they are cowards. Their cowardice will turn our country into something less than a democracy. "Land of the free, home of the brave" - freedom and bravery go together. You can't have freedom if you are not brave.

David Frakt, professor at Western State University Law School and former successful defense counsel to a Guantanamo detainee: The assertion that there are 75 detainees who are too dangerous to release, but can't be prosecuted, and therefore must be held indefinitely, defies common sense.

It is true that as a matter of the law of war that during an armed conflict, a person who is detained for taking part in the armed conflict may be held until the resolution of the conflict. Each of the detainees being held has been determined in a Combatant Status Review Tribunal to have been an "enemy combatant."

This does not mean that the detainee committed a crime. It could simply mean that the detainee fought against US or allied forces when they invaded Afghanistan or was prepared to do so if they had the opportunity. The government might feel that such detainees should not be released because they would return to the battlefield in an ongoing conflict. What is more troubling is the notion that some of the detainees are believed to have committed crimes but that such crimes can't be proven in a court of law. I find this hard to believe. Virtually any association with Al Qaeda is enough to support a federal charge of material support to terrorism, which would likely lead to a lengthy prison sentence. So why can't these people be tried - because they didn't commit a crime, or because the crimes they are believed to have committed can't be proved in court? If it is that the crimes can't be proven in court, why is that? Is it because of the government's belief that all of the evidence they have against an individual would be suppressed as the product of torture? In my opinion, if the only evidence we have is derived from torture, then we can't have any degree of confidence in the reliability of such evidence.

The government has shown a willingness to try several individuals who have admittedly been tortured based on the alleged existence of independent "clean" evidence, so the mere fact that someone was tortured is clearly not a bar to prosecution in the view of the Obama Administration. If there is independent corroborating evidence, then let the individuals be tried. If there is no non-torture derived evidence, then the government should not be able to even prove by a preponderance of the evidence that an individual should be held. We have seen repeatedly in the habeas corpus litigation that the government's evidence did not hold up to judicial scrutiny.

The Administration needs to come clean on who they believe fits into this category and why. Otherwise, we are just left to speculate.

Chip Pitts, president of the Bill of Rights Defense Committee: You're right about the detention (but not necessarily right about the laws of war enabling us to hold them until "hostilities" come to an end - if by that you mean hostilities in the so-called Global War on Terror or GWOT).

The laws of war apply to the detainees variously (if at all! - don't forget that the GWOT framework is novel and legally and factually problematic in the extreme, and in my view and that of many other international lawyers and scholars it's utterly incorrect and inapplicable both in terms of the traditional law of war and in terms of human rights and constitutional law which apply even at all times even when there is no war).

Real wartime, i.e. battlefield detainees from Iraq or Afghanistan, are POWs and should rightly be seen as in a completely different legal category from civilians suspected of crime or simply rounded up and sent to GITMO, Bagram, or any of the secret prisons or interrogation sites used by the CIA, the government, and its allies. The former may be held until the end of those particular hostilities and the latter must be tried (supposedly under speedy trials as well as the other legal guarantees of fair trials) or promptly released.

You're right that indefinite detention without trial or legal due process of either category - of anyone, in fact - is outlawed both by the law of war and by international human rights law (as well as US constitutional law).

Moreover, there's no question that not all of the people now at GITMO are even accused of being criminals (war criminals or civilian criminals), all of which means that your question goes back again to the conceptual and legal framework with which we're viewing the situation; the legitimacy and legality of detention in general and indefinite detention in particular; and the individual facts of each person's case (to determine whether there are any legitimate legal grounds at all for detention and/or trial) - the interpretation of which becomes so much harder in light of the use of torture to coerce unreliable testimony.

So not even all the Constitutional experts agree precisely on the legal basis for putting a prisoner into that "fifth category" - the ones we're told can't be tried but are too dangerous to release. Largely because the Bush Administration tried to create its own law, the legal landscape is confused and confusing. But that doesn't help the Obama Administration. It still faces the question of what to do with these people.

In doing so, it faces a group - a very small group - of bad options. It can charge a person with a crime and risk being embarrassed by having tainted evidence thrown out of court. A court might also find that its evidence is insufficient or unreliable. A defendant might actually be exonerated or win on appeal - what then?

When, for one reason or another, you reject all but one of these options, you need then to accept that we are on our way to warehousing people.

For Americans, this is contrary to everything we've ever been taught about our system of justice.

Obama Channeling Bush Again?

By William Fisher

With the health care debate preoccupying the mainstream media, it has gone virtually unreported that the Obama Administration is quietly supporting renewal of provisions of the Bush-era USA Patriot Act that civil libertarians say infringe on basic freedoms.

And they are reportedly doing so over the objections of some prominent Democrats.

When a panicky Congress passed the act 45 days after the terrorist attacks of September 11, 2001, three contentious parts of the law were scheduled to expire at the end of next month, and opponents of these sections have been pushing Congress to substitute new provisions with substantially strengthened civil liberties protections.

But with the apparent approval of the Obama White House and a number of Republicans –and over the objections of liberal Senate Democrats including Russ Feingold of Wisconsin and Dick Durbin of Illinois – the Senate Judiciary Committee has voted to extend the three provisions with only minor changes.

Those provisions would leave unaltered the power of the Federal Bureau of Investigation (FBI) to seize records and to eavesdrop on phone calls and e-mail in the course of counterterrorism investigations.

The parts of the act due to expire on December 31 deal with:

National Security Letters (NSLs). The FBI uses NSLs to compel Internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons. Using this data, the government can compile vast dossiers about innocent people.

The ‘Material Support’ Statute. This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations.

FISA Amendments Act of 2008. This past summer, Congress passed a law that permits the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and
e-mails.

Asked by IPS why committee chairman Senator Patrick Leahy of Vermont and other Democrats chose to make only minor changes, Chip Pitts, president of the Bill of Rights Defense Committee, referred to “the secret and hypocritical lobbying by the Obama administration against reforms – while publicly stating receptiveness to them.” White House pressure, he speculated, “was undoubtedly a huge if lamentable factor.”

He added that some committee members were cautious because of the recent arrests of Najibullah Zazi and others.

Zazi , a citizen of Afghanistan and a legal U.S. resident, was arrested in September as part of a group accused of planning to carry out acts of terrorism against the U.S. Zazi is said by the FBI to have attended courses and received instruction on weapons and explosives at an Al Qaeda training camp in Pakistan.

Leahy acknowledged that, in light of these incidents, “this is no time to weaken or undermine the tools that law enforcement relies on to protect America.”

Pitts told IPS, “Short-term and political considerations driven by dramatic events once again dramatically affected the need for a more sensible long-term, reasoned, rule-of-law approach.”

“In the eight years since passage of the original Patriot Act, it’s become clear that the escalating political competition to appear tough on terror -- and avoid being accused of being “soft on terror” -- brings perceived electoral benefits with few costs, with vital but fragile civil liberties being easily sacrificed,” he added.

In contrast to the Senate, the House of Representatives Judiciary Committee approved a version of the legislation containing several significant reforms. In a 16-10 party-line vote, the committee’s version curbs some of the government’s controversial surveillance powers.

The Patriot Act, passed by a landslide after the 9/11 terrorist attacks to provide law enforcement and intelligence agencies additional powers to thwart terrorist activities, was reauthorized in 2005.

The legislation has been criticized by many from across the ideological spectrum as a threat to civil liberties, privacy and democratic traditions. Sections of the original act have been ruled unconstitutional, with certain provisions violating protected rights.

Judiciary Chair John Conyers, a Michigan Democrat, said the goal of the new legislation was to “craft a law that preserves both our national security and our national values.”

The proposed new legislation would permit the so-called “lone wolf” provision to sunset. This authority removed the requirement that an individual needed to be an agent of a foreign power to be placed under surveillance by intelligence officials and permitted surveillance of individuals with a much lower evidentiary threshold than allowed under criminal surveillance procedures. It was intended to allow the surveillance of individuals believed to be doing the bidding of foreign governments or terrorist organizations, even when the evidence of that connection was lacking.

The Justice Department maintains that the “lone wolf” authority is necessary, even though there is no evidence that it has been used. Its opponents believe that existing authorities are sufficient to achieve the goals of the lone wolf provision while more effectively protecting the rights of innocent Americans.

The proposed new House legislation would also restrict the use of national security letters. According to a Congressional Research Service report, “National security letters (NSL) are roughly comparable to administrative subpoenas. Intelligence agencies issue them for intelligence gathering purposes to telephone companies, Internet service providers, consumer credit reporting agencies, banks, and other financial institutions, directing the recipients to turn over certain customer records and similar information.”

Under current law, intelligence agencies have few restrictions on the use of NSLs, and in numerous cases, have abused the authority. An FBI inspector general report in 2007 “found that the FBI used NSLs in violation of applicable NSL statutes, Attorney General Guidelines, and internal FBI policies.” The reform provisions seek to create greater judicial scrutiny of NSL use.

The bill approved in the Senate contains much more modest reforms. It would retain the lone wolf provision, and is, in general, much more in line with the wishes of the administration. Should both bills pass and go into conference to be reconciled, it is unclear which approach would prevail.

House and Senate versions still need to be voted on by each body separately and then reconciled into a single bill to send to the president for signature.

Pitts told IPS, “President Obama’s flip-flop on Patriot Act issues does as much damage as did his flip-flop on the FISA Amendments Act and telecom immunity last year. But it’s imperative that we fight, while we still can, to comprehensively reinsert requirements for fact-based, individualized suspicion, checks and balances, and meaningful judicial review prior to government intrusions.”

In a report on the Patriot Act, the American Civil Liberties Union (ACLU) said, “More than seven years after its implementation there is little evidence that the Patriot Act has been effective in making America more secure from terrorists. However, there are many unfortunate examples that the government abused these authorities in ways that both violate the rights of innocent people and squander precious security resources.”

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.