April 9, 2009
Obama Administration Claims Broad State Secrets Privilege (Again)
The Obama administration last Friday filed a motion to dismiss in Jewel v. NSA, the Northern District of California case challenging NSA's "dragnet surveillance" with the cooperation of private telecon operators, asserting sovereign immunity and the State Secrets Privilege. (The companion case against AT&T, Hepting v. AT&T, is stalled while the plaintiffs challenge Congress's grant of immunity to private telecon operators. The government intervened in that case to assert the State Secrets Privilege, but the plaintiffs' claims won't even get out of the gate if the court dismisses it based on telecon immunity.)
The buzz in the blogs and on cable news is that the Obama administration's position in the case is more aggressive than the Bush administration's position. (See, e.g., Glenn Greenwald's posts here and here; see plaintiff Electronic Frontier Foundation commentary here. Thanks to reader and student Jerzy Banasiak for the tip on the EFF commentary.)
The administration's State Secrets claim is, indeed, as broad as it could be: It calls for dismissal of the entire case based solely on an affidavit of the Director of National Intelligence that litigating any of plaintiffs' claims--even litigating plaintiffs' standing--would require disclosure of state secrets. The administration leaves no room even for in camera judicial review of the evidence; it calls for dismissal based only on the DNI affidavit. The government's position could only be broader if it asked the court to destroy all record of the case (!). (Watch out.)
But the administration's position isn't really surprising, either. Recall that the administration reasserted the Bush administration's State Secrets claim just a couple months ago in Mohamed v. Jeppesen Dataplan, Inc., the Ninth Circuit case against a Boeing subsidiary for its role in the plaintiff's extraordinary rendition.
To be sure, the administration's claim in Mohamed was merely a re-claim of the Bush administration's position, while its claim in Jewel is a product of its own litigation strategy. And the administrations' role in Mohamed was as intervenor, not defendant.
But neither of these really matter in evaluating the scope of the Obama administration's State Secrets claims. The Obama administration had plenty of time to reconsider the Bush strategy in Mohamed; the re-assertion of the State Secrets Privilege in that case was every bit as much a product of Obama administration thinking as the assertion in Jewel. And the difference between defendant and intervenor in these cases isn't a principled way of evaluating the scope of the admininstration's claims.
In short, we now have two strong pieces of evidence that the Obama administration intends to maintain the broadest possible position on State Secrets.
The administration's position, by the way, is directly at odds with a bill now in Congress to limit the President's use of the State Secrets Privilege. I posted on this recently; the bill is here. This would require in camera review of material that the executive claims is covered by the State Secrets Privilege and thus provide a judicial check on the administration's claims. The administration will almost certainly raise constitutional objections to this bill (should it ever get out of committee), but it would also do well to at least consider the concerns that motivate it. The bill is much more consistent with the administration's commitments to increase transparency. (And the same bill last session was co-sponsored by two current top administration officials, the Vice President and the Secretary of State.)
The other piece of the administration's motion in Jewel--its claim of sovereign immunity--is equally broad, especially considering the careful carving out that Congress did in the act last year granting immunity to private telecons (but not to the government). In the wake of those debates, the administration's claims of sovereign immunity are truly breathtaking.
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