Tag: state secrets

Targeted Killing of U.S. Citizen a State Secret?

That’s the claim the Obama administration made in court. As Glenn Greenwald puts it:

[W]hat’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”:  in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.

Italics in the original. My colleagues Gene Healy and Nat Hentoff have expressed concerns about targeted killings. Charlie Savage wrote a good piece on this that highlights how even the most ardent defenders of executive power may blush at this broad claim of power.

The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.

“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.

In fairness, Rivkin would defend the administration’s claim of power on other grounds – that targeting is a “political question” for the elected branches of government – but this approach seems to have lost out because it invites the judiciary to determine whether the U.S. is at war in Yemen.

Amending the Authorization for the Use of Military Force passed by Congress after 9/11 is long overdue. What groups are we truly at war with, where does the line between war and peace sit, who can we detain and kill, and what process is owed before a citizen may be targeted with lethal force? Questions of war are political in nature, and if we don’t know the answers, it is Congress’ role to step in and provide them.

Obama Administration Wins in State Secrets Case

A split panel of the 9th Circuit Court of Appeals decided, on a 6-5 vote, that a lawsuit filed by extraordinary rendition and torture victims is barred by the State Secrets Privilege. Over a year ago, a three-judge panel ruled that the case should proceed with traditional application of the Privilege — individual pieces of evidence would be excluded based on their secret nature, but other evidence would remain available for litigation.

Robert Chesney has some thoughtful commentary on how the current state of the law deals with rule of law versus individual justice concerns. By any measure this is, as Glenn Greenwald notes, a broad victory for the government and further evidence of continuity between the Bush and Obama administrations’ approaches to terrorism.

State Secrets, Courts, and NSA’s Illegal Wiretapping

As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.

Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.

But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.

If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.

There was the John Yoo argument that the president essentially becomes omnipotent during wartime, and that if we can shoot Taliban on a foreign battlefield, surely we can wiretap Americans at home if they seem vaguely Taliban-ish. Even under Bush, the Office of Legal Counsel soon backed away from such… creative… lines of argument. Instead, they relied on the post-9/11 Authorization for the Use of Military Force (AUMF) against al-Qaeda, claiming it had implicitly created a loophole in the FISA law. It was David Kris, now head of DOJ’s National Security Division, who most decisively blew that one out of the water, concluding that it was “essentially impossible” to sustain the government’s reading of the AUMF.

Yet you’ll note that none of these issues arise in Walker’s opinion, because the DOJ, in effect, refused to play. They resisted the court at every step, insisting that a program discussed at length on the front pages of newspapers for years now was so very secret that no aspect of it could be discussed even in a closed setting. They continued to insist on this in the face of repeated court rulings to the contrary. So while Al-Haramain has prevailed, there’s no ruling on the validity of any of those arguments. That’s why I think Marcy Wheeler is probably correct when she predicts that the government will simply take its lumps and pay damages rather than risk an appeal. For one, while Obama administration has been happy to invoke state secrecy as vigorously as its predecessor, it would obviously be somewhat embarrassing for Obama’s DOJ to parrot Bush’s substantive claims of near-limitless executive power. Perhaps more to the point, though, some of those legal arguments may still be operative in secret OLC memos. The FISA Amendments Act aimed to put the unlawful Bush program under court supervision, and even reasserted FISA’s language establishing it as the “exclusive means” for electronic surveillance, which would seem to drive a final stake in the heart of any argument based on the AUMF. But we ultimately don’t know what legal rationales they still consider operative, and it would surely be awkward to have an appellate court knock the legs out from under some of these secret memoranda.

None of this is to deny that the ruling is a big deal—if nothing else because it suggests that the government does not enjoy total carte blanche to shield lawbreaking from review with broad, bald assertions of privilege. But I also know that civil libertarians had hoped that the courts might be the only path to a more full accounting of—and accountability for—the domestic spying program. If the upshot of this is simply that the government must pay a few tens, or even hundreds of thousands of dollars in damages, it’s hard not to see the victory as something of a disappointment.

State Secrets, State Secrets Are No Fun

Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.

That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.

That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater  accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.

State Secrets Case Proceeds

A three-judge panel from the Court of Appeals for the Ninth Circuit ruled yesterday that the State Secrets Privilege, a doctrine barring the introduction of sensitive information as evidence, did not bar a suit by former CIA detainees.  (H/T SCOTUSBlog)

The plaintiffs allege that the defendant, a contract airline associated with the extraordinary rendition program, knowingly flew them to countries where they would be tortured.  The panel held that individual pieces of evidence may be subject to the Privilege, but a suit could not be entirely barred by a government assertion that sensitive information could be revealed.

This presents a split in federal circuit rulings on the State Secrets Privilege.  The Fourth Circuit held that the Privilege could bar a civil suit entirely.  This expansion of the State Secrets Privilege, started under Bush and continued under Obama, is a departure from the fact-specific evaluation described by the Supreme Court in U.S. v. Reynolds.  “Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”

As my colleague Tim Lynch has written before, the State Secrets Privilege often has little to do with keeping secrets and a lot to do with avoiding liability.  All that remains to be seen is whether the Obama administration will appeal the ruling, either to an en banc rehearing by the full Ninth Circuit or at the Supreme Court.