Constitutional Law Prof Blog

Weekend Read: The Circle by Dave Eggers

Dave Eggers' new novel, The Circle, is a thought-provoking read for anyone working on surveillance, state secrets, corporate governance, privacy, or First Amendment issues as broadly defined.  There are have been some questions raised, as in the review in Wired, whether the book is technologically sophisticated - - - I'd say it's not - - - or whether it works as literature - - - again, I'd lean towards not.  I also think there are some gender and sexual politics that merit further analysis and mar the novel.    But even with these faults, it is one of those books that gives expression to the way one sees daily life in our connected age.

Margaret Atwood has a terrific review of the book in New York Review of Books that gives a good overview of the themes, laced with literary references that the novel itself lacks. Discussing the book over at the New Yorker Blog, Betsy Morais contextualizes the novel, including some of the criticisms and analogues. There's a good rundown of reviews and the divisions about the book in The Atlantic "Wire." 

The book lingers after it is read because it raises interesting questions about the relationships between corporate power and government, as well as our complicity in this internet and social age.  And it's a quick read - - - especially electronically.

 

UPDATE: And here's the NYT Sunday Book Review by Ellen Ullman, who concludes the novel "adds little to the debate" : "Books and tweets and blogs are already debating the issues Eggers raises: the tyranny of transparency, personhood defined as perpetual presence in social networks, our strange drive to display ourselves, the voracious information appetites of Google and Facebook, our lives under the constant surveillance of our own government."

Daily Power Point Slides: PRISM, Surveillance, France and the NSA

Many will be considering the new revelations regarding the NSA and France, published in Le Monde today, linked and discussed in this LeMonde editorial, with The Guardian coverage here.

A few Power Point slides are published in Le Monde.   But Journalist Glenn Greenwald and Edward Snowden have also released additional Power Point Slides that are worth a look.  A set of eleven slides have some redactions, but will also seem eerily familiar to anyone who has ever prepared or seen a Power Point presentation:

 

slide 3

 

slide 5

Daily Read: The Obama Administration and the Press Leak

An extensive "Special Report" from the Committee to Protect Journalists, CPJ, details and discusses the state of "leaks" including prosecutions of James Risen and Manning.

Here's the opening:

 In the Obama administration’s Washington, government officials are increasingly afraid to talk to the press. Those suspected of discussing with reporters anything that the government has classified as secret are subject to investigation, including lie-detector tests and scrutiny of their telephone and e-mail records. An “Insider Threat Program” being implemented in every government department requires all federal employees to help prevent unauthorized disclosures of information by monitoring the behavior of their colleagues.

Six government employees, plus two contractors including Edward Snowden, have been subjects of felony criminal prosecutions since 2009 under the 1917 Espionage Act, accused of leaking classified information to the press—compared with a total of three such prosecutions in all previous U.S. administrations. Still more criminal investigations into leaks are under way. Reporters’ phone logs and e-mails were secretly subpoenaed and seized by the Justice Department in two of the investigations, and a Fox News reporter was accused in an affidavit for one of those subpoenas of being “an aider, abettor and/or conspirator” of an indicted leak defendant, exposing him to possible prosecution for doing his job as a journalist. In another leak case, a New York Times reporter has been ordered to testify against a defendant or go to jail.

This is definitely worth a read, especially for anyone interested in the First Amendment or State Secrets.

 

Daily Media: Manning Updates (Including Banksy)

Chelsea Manning, convicted as Private Bradley Manning in a controversial military trial for revealing information to WikiLeaks, issued the first statement since her conviction, prompted in part by receiving a peace award.  She stated that although her actions may have had pacficist "implications," she does not consider herself a pacifist.   Rather, she is a "transparency advocate."  The statement also contains specific discussion of gender identity.   Manning's two page statement is worth a read, as is the accompanying article in The Guardian (to whom the statement was released) by Ed Pilkington.

Meanwhile in New York City, the latest and most ambitious project of the British public artist Banksy in his self-proclaimed October artist's residency on the streets of New York, alludes to Manning.  The street art's references might be somewhat illusive to a casual observer:

But Banksy's site featuring this image (as well as another), also includes an "audio guide."  It derives from some of the materials that Manning disclosed.  Gothamist has a good explanation (and more photos).  The Village Voice has excellent (with continuing) coverage of Banksy's art here and a profile with quoted material here.

 

Daily Read: Two Views of NSA

It's worth comparing two views of the National Security Administration (NSA) and its searches.

First, take a look at the views of Amy Zegart, the co-director of Stanford University's "Center for International Security and Cooperation."  Zegart and other scholars participated in a "rare briefing" at NSA to consider "cybersecurity, the plummeting public trust in the agency, its relationship with Congress and how to rebuild the agency’s reputation and rethink its program operations."  Zegart's interview is mostly sympathetic to NSA concerns, but she does say this:

They definitely wanted us to believe that what they are doing is lawful and effective. I believe the lawful part; I’m not so sure about the effective part. I think they haven’t looked hard enough about what effective means. Do they know it when they see it? And who’s to judge?

 

Nevertheless, it's a rather sharp contrast with a NYT article, co-authored by James Risen (recall his lititgation asserting a reporter's First Amendment right to protect sources) and Laura Poitras (recall her involvement in the Snowden revelations) that discusses wide ranging collection of data and metadata.  They often rely on anonymous sources discussing classified information.   Perhaps most startling is this passage in the article's last paragraph, quoting from a 2011 memo, that said even

after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later.

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Daily Pic: Information Dominance Center

via 

The image is from an architectural brochure linked in Glenn Greenwald's article this morning in The Guardian, "Inside the mind of NSA chief Gen. Keith Alexander," subtitled "A lavish Star Trek room he had built as part of his 'Information Dominance Center' is endlessly revealing."

Worth a look - - - and read - - - for anyone working on national security, state secrets, or surveillance issues. 

 

Daily Write: Citing a Secret Court Ruling

As a companion to today's "daily read" on  a "secret ruling on secret motion in secret hearing,"  we offer the unofficial "Blue Book" citation, courtesy of a ConLawProf Blog reader who hopes to remain anonymous:

 

Daily Read: An Example of a Secret Ruling

As the headline in the Miami Herald article proclaims, "Guantánamo judge makes secret ruling on secret motion in secret hearing."  

Released today, on the twelfth anniversary of September 11 tragedy, is a transcript of an August  hearing relating to the September 11 co-conspirators.  It's worth a read - - - or perhaps "a look" would be more accurate.

 Here's a snippet:

However, it does become clear that the Prosecution sought to prevent "something" from discovery by defense counsel and that the judge decided in favor of defense counsel representing the September 11 co-conspirators. 

Divided Fourth Circuit Rejects Reporters' Privilege to Protect Sources

In its opinion in United States v. Sterling, with James Risen as Intervernor, a sharply divided Fourth Circuit panel declared there was no First Amendment right - - - or common law privilege - - - for a reporter to resist a subpoena to reveal the identity of a source.

The underlying controversy involves James Risen's book, State of War: The Secret History of the CIA and the Bush Administration  and the prosecution of former CIA agent Jeffrey Sterling for various crimes related to his revealtions of classified information.   As Chief Fourth Circuit Judge William Traxler, writing for the panel majority on this issue, describes it,

Chapter 9 of the book, entitled “A Rogue Operation,” reveals details about Classified Program No. 1. J.S.A. 219-32. In the book, Risen entitled the program “Operation Merlin” and described it as a “failed attempt by the CIA to have a former Russian scientist provide flawed nuclear weapon blueprints to Iran.” J.A. 722. Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.

While the opinion involves two other issues, involving the suppression of the testimony of two other government witnesses and the withholding of the identities of several covert CIA operatives under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 - - - issues on which Chief Judge Traxler wrote a concurring and dissenting opinion - - - the nonexistence of a reporters' privilege is the most central from a constitutional perspective.   The majority opinion was unequivocal:

There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.

The majority reasoned that this result was mandated by the United States Supreme Court's 1972 opinion in Branzburg v. Hayes.  It did not credit the argument that Justice Powell’s concurring opinion in Branzburg made Branzburg's holding less clear.  Instead, it rejected Risen's contention that Powell's concurrence "should instead be interpreted as a tacit endorsement of Justice Stewart’s dissenting opinion, which argued in favor of recognizing a First Amendment privilege in criminal cases that could be overcome only if the government carries the heavy burden of establishing a compelling interest or need."  The majority stated that just as in Branzburg, Risen has

“direct information . . . concerning the commission of serious crimes.” Branzburg, 408 U.S. at 709. Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury –- the illegal disclosure of classified, national security information by one who was entrusted by our government  to protect national security, but who is charged with having endangered it instead.

That the crime is the leak itself does not seem to be noteworthy.  The majority likewise rejected the notion that there was any common law privilege.

For Judge Robert Gregory, dissenting, principles of a free press as expressed in the First Amendment should include a reporter's privilege, that should then be evaluated under a balancing test:

Protecting the reporter’s privilege ensures the informed public discussion of important moral, legal, and strategic issues. Public debate helps our government act in accordance with our Constitution and our values. Given the unprecedented volume of information available in the digital age – including information considered classified – it is important for journalists to have the ability to elicit and convey to the public an informed narrative filled with detail and context. Such reporting is critical to the way our citizens obtain information about what is being done in their name by the government.

For Judge Gregory, Justice Powell's concurring opinion modifies the holding of Branzburg.  Recognizing that the "full import of Justice Powell’s concurrence continues to be debated," Judge Gregory notes that appellate courts have subsequently hewed closer to Justice Powell’s concurrence – and Justice Stewart’s dissent – than to the majority opinion, and a number of courts have since recognized a qualified reporter’s privilege, often utilizing a three-part balancing test."  He thus finds it "sad" that the majority "departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters."  Judge Gregory would also recognize a "common law privilege protecting a reporter’s sources pursuant to Federal Rule of Evidence 501."

While there are statutory proposals and provisions aplenty, the continuing confusion over the meaning of Branzburg and the existence of a reporter's First Amendment or even common right to retain confidentiality of sources does call for resolution.  The Fourt Circuit's divided opinion squarely presents the issue for the Supreme Court .

RR

Daily Read: The Terrorism Exception to the Constitution?

Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?

ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).

Abrams argues for a something less than a wholesale exception:

The expression, “cabined,”  is  meant to signify not extending  all the way up the ladder of police  interrogation  methods, but only applying to a limited, non  -  extreme set of interrogation  methods, albeit methods that under current law might lead to a  determination of involuntariness.  A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as  established by the Supreme Court, but only up to a point, and not to the  point where the methods used are extreme.

For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling.  But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.  

RR

Bradley Manning's "Secret" Trial

In its sharply divided opinion in Center for Constitutional Rights v. United States, the United States Court of Appeals for the Armed Forces rejected a claim that of public access to the trial and documents regarding the Bradley Manning court martial.

We've previously discussed the contentious Bradley Manning prosecution here, here, here, here, and here.

In this case, the appellants - - Center for Constitutional Rights, Glenn Greenwald, “Salon.com,” Jeremy Scahill, “The Nation,” Amy Goodman, “Democracy Now!,” Chase Madar, Kevin Gosztola, Julian Assange, and Wikileaks - - - sought press access.  The three-judge majority noted that the court "invited counsel for the accused to file a brief on the issues but they declined to do so."  It concluded that the court did not have the "jurisdiction" to grant the relief requested.

 

Bradley Manning reading his plea statement in court, sketched by Clark Stoeckley via

 

The two dissenting opinions - - - each judge authoring an opinion that the other joined - - - reject the majority's disinclination to assert its own power.

A dissenting opinion, by Chief Judge Baker joined by Senior Judge Cox, begins by centering the First Amendment concerns:

The general public has a qualified constitutional right of access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555 (1980) (plurality opinion). Public access to a criminal trial includes appropriate access to filings. Nixon v. Warner Commc’ns , Inc. , 435 U.S. 589 , 597 (1978) . “Congress intended that, to the extent ‘practicable,’ trial by court - martial should resemble a criminal trial in a federal district court.” United States v. Valigura , 54 M.J. 187, 191 (C.A.A.F . 2000). The right to a public trial is embedded in Rule for Court’s - Martial (R.C.M.) 806, which provides that “ [e]xcept as otherwise provided in this rule, courts - martial shall be open to the public.”

Judge Baker's opinion stops short of concluding that there should be press access to the proceedings and documents, but does conclude that the court should determine the specific contours of the First Amendment right.   

Judge Cox's dissenting opinion, joined by Baker, emphasized the court's role to assist the military trial judge, noting that the military judges " are in a better position to do that than is a federal district judge to solve the issues presented."

Thus, it seems as if it will continue to be difficult to determine what is happening in the court martial of Bradley Manning.

RR

Daily Read: Yochai Benkler on Bradley Manning

Law Prof Yochai Benkler's article in the New Republic, "The Dangerous Logic of the Bradley Manning Case" argues that the prosecutions theory of aiding the enemy is uniquely broad. 

Benkler (pictured) makes the comparisons between the New York Times and Wikileaks, drawing not only yesterday's statement by Manning but also on a January hearing. 

For Benkler, the aiding the enemy offense strikes at the heart of the First Amendment:

It prohibits not only actually aiding the enemy, giving intelligence, or protecting the enemy, but also the broader crime of communicating—directly or indirectly—with the enemy without authorization. That's the prosecution's theory here: Manning knew that the materials would be made public, and he knew that Al Qaeda or its affiliates could read the publications in which the materials would be published. Therefore, the prosecution argues, by giving the materials to WikiLeaks, Manning was “indirectly” communicating with the enemy. Under this theory, there is no need to show that the defendant wanted or intended to aid the enemy. The prosecution must show only that he communicated the potentially harmful information, knowing that the enemy could read the publications to which he leaked the materials. This would be true whether Al Qaeda searched the WikiLeaks database or the New York Times'.

Benkler's contribution is a must-read for anyone following the Manning prosecution.

RR

Bradley Manning's Statement

Developments in the Bradley Manning case include the news that Manning has pleaded guilty to some charges - - - but not to the charge of aiding the enemy - - - as reported by the NY Times. 

While there is apparently no official copy of Bradley Manning's statement, The Guardian has published a copy of Manning's lengthy statement as transcribed by independent journalist Alexa O'Brien.

Of particular interest are Manning's statements undermining his intent to aid the enemy and supporting his claim of whistle-blowing, including his choice of recipients for his information.

At this point I decided that it made sense to try to expose the SigAct tables to an American newspaper. I first called my local news paper, The Washington Post, and spoke with a woman saying that she was a reporter. I asked her if the Washington Post would be interested in receiving information that would have enormous value to the American public.

Although we spoke for about five minutes concerning the general nature of what I possessed, I do not believe she took me seriously. She informed me that the Washington Post would possibly be interested, but that such decisions were made only after seeing the information I was referring to and after consideration by senior editors.

I then decided to contact [missed word] the most popular newspaper, The New York Times. I called the public editor number on The New York Times website. The phone rang and was answered by a machine. I went through the menu to the section for news tips. I was routed to an answering machine. I left a message stating I had access to information about Iraq and Afghanistan that I believed was very important. However, despite leaving my Skype phone number and personal email address, I never received a reply from The New York Times.

Such revelations invite an obvious comparison between Bradley Manning's plight and that of Daniel Ellsburg, who revealed The Pentagon Papers and prompted the renowned First Amendment decision in New York Times v. United States (1971).   Another comparison is to a Civil War prosecution, even as courts consider First Amendment claims resisting the government subpoenas of Twitter accounts.

But Bradley Manning's case is proving unique.

RR
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Daily Read: Congressional Research Service on Leaks of Classified Information

The leak of the DOJ white paper on drone attacks and its publication raise yet again the First Amendment issues surrounding prosecutions for leaks and possibily for publication.

Less than two weeks ago, the Congressional Research Service released its 33 page report, authored by legislative attorney Jennifer Elsea, entitled "Criminal Prohibitions on the Publication of Classified Defense Information." 

 

The report centers wikileaks and Bradley Manning, but also discusses five other pending prosecutions that have received less publicity, including the Administration's attempt to compel New York Times reporter James Risen to testify at the trial of former CIA officer Jeffrey Sterling, who is accused of providing classified information to Mr. Risen that formed the basis of part of Risen's book, State of War: The Secret History of the CIA and the Bush Administration.

The report considers the statutory frameworks, problems such as jurisdiction and extradition, other legislative proposals, and - - - in six pages - - - the constitutional issues.  While brief, the First Amendment discussion is nevertheless a good review and a good reminder that the law is deeply unsettled even with respect to classified information.

RR
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Fourth Circuit Denies First Amendment Right of Access to Twitter Orders Related to Wikileaks and Bradley Manning

At the heart of the Fourth Circuit's opinion issued today in US v. Applebaum, are orders issued under 18 U.S.C. § 2703 related to "the unauthorized release of classified documents to WikiLeaks.org, and the alleged involvement of Bradley E. Manning, a U.S. Army Private First Class."  The § 2703(d) Order from a magistrate judge directed Twitter, Inc. ("Twitter") to disclose records of electronic communications of Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir, including their names, usernames, personal contact information, account information, connection records, financial data, length of service, direct messages to and from email addresses and Internet Protocol addresses for all communications between November 1, 2009, and December 14, 2010.

The magistrate's order was originally sealed, but when it was unsealed the subjects of the order moved to have it vacated and to unseal all documents relating to that order and any other orders that might have been issued to companies other than Twitter.

The panel articulated the standard to decide whether the First Amendment provides a right to access §2703(d) orders and proceedings, as

the "experience and logic" test, asking: "(1) ‘whether the place and process have historically been open to the press and general public,’ and (2) ‘whether public access plays a significant positive role in the functioning of the particular process in question."

The Fourth Circuit panel found the First Amendment claim here failed the latter prong.  It discussed, without accepting, the argument that any history inquiry was meaningless because §2703(d) orders only because available when the statute was passed in 1986.  But

Even assuming only the logic prong is required, this prong is not met. The logic prong asks whether public access plays a significant role in the process in question. The § 2703(d) process is investigative, and openness of the orders does not play a significant role in the functioning of investigations. Section 2703(d) proceedings consist of the issuance of and compliance with § 2703(d) orders,10 are ex parte in nature, and occur at the investigative, pre-grand jury, pre-indictment phase of what may or may not mature into an indictment. Pre- indictment investigative processes "where privacy and secrecy are the norm" "are not amenable to the practices and procedures employed in connection with other judicial proceedings."

Thus, there was no First Amendment right of access.  The court also found that there was no common law right of access.

Thus, the Fourth Circuit approved the continuing secrecy of government surveillance under the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act ("SCA").

RR
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Daily Read: Bradley Manning's Attorney on C-Span

Some excellent reporting and gathering of materials from C-SPAN on the Bradley Manning case, involving constitutional issues of state secrets, First Amendment, and due process, among others.

Today's daily "read" is the video from an event discussing the Manning case features a very rare appearance by Manning's attorney, David Coombs.   The introduction of Coombs starts at 22:40.  Coombs discusses the "unlawful pretrial punishment motion" regarding Manning's treatment during detention which he describes as "criminal" before the move to Leavenworth, the public attention to the case, whistle-blowing.  He also responds to vetted questions: he lauds the military justice system, including the judges and any possible panel, as educated, open-minded, and fair; discusses his own legal career; generally discusses the relationship between the "press" and an "aiding the enemy" offense; the perils of "trying the case in the press;" and privileged communication between attorney and client.   Interestingly absent is any discussion of Manning's sexuality.

.

 

This is definitey worth a listen!

RR

Court Dismisses Operation Flex Challenge on State Secrets Privilege

Judge Cormac J. Carney (C.D. Cal.) this week dismissed a case brought by several Muslims challenging an FBI surveillance program on the government's assertion of the state secrets privilege.  (Thanks to emptywheel.net for links to the opinions below.)

The ruling, along with a companion ruling on the plaintiffs' FISA claim, terminates all but a sliver of the case.  It also illustrates what a powerful weapon the state secrets privilege can be--protecting an indiscriminate surveillance program that, as described by the plaintiffs, even the judge called "disturbing."  At the end of the day, Judge Carney dismissed the entire case (aside from the FISA claim, discussed below and dismissed in part on other grounds) on the government's own claim, based on a sealed declaration, that its defense would necessarily reveal state secrets.

The rulings in Fazaga v. FBI arose out of the plaintiffs' challenge to the FBI's "Operation Flex" program.  According to the complaint, the FBI engaged a civilian, Craig Monteilh, to conduct indiscriminate surveillance on Muslims in Southern California.  The surveillance resulted in hundreds of hours of video and thousands of hours of audio recordings from the mosques, homes, businesses, and associations of hundreds of Muslims.  But it didn't result in a single criminal charge.

The plaintiffs sued the FBI and its officers under several constitutional and statutory theories, including FISA.  The government moved to dismiss, arguing that its defense necessarily required disclosure of information that would harm national security--that is, state secrets--and the court agreed.  Judge Carney explained:

Here, Plaintiffs' claims are predicated on their core allegation that Defendants engaged in an indiscriminate investigation, surveillance, and collection of information of Plaintiffs and the putative class because they are Muslim. . . .  [T]he Court is persuaded that privileged information provides essential evidence for Defendants' full and effective defense against Plaintiffs' claims--namely, showing that Defendants' purported "dragnet" investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused. . . .  [T]he Court is [also] convinced that the privileged and nonprivileged information are inextricably intertwined, such that litigating the instant case to judgment on the merits would present an unacceptable risk of disclosing state secrets.

Op. at 31, 33 (emphasis in original).

Judge Carney's ruling is thorough and thoughtful--explaining the Totten bar and the Reynolds privilege; navigating between and synthesizing recent rulings coming out of the Ninth Circuit (Jeppesen Dataplan) and the Fourth  Circuit (El-Masri); reviewing the government's confidential supporting affidavit and memorandum; checking the government's assertion against the government's own standards and processes for asserting the privilege; and explaining in broad terms just what the kind of information might be disclosed in the litigation.  In other words, the ruling seems modest, balanced, and reasonable.

But still there's this: Judge Carney dismissed the entire case because the government's defense would have required revealing information that would harm national security, based only on the government's own say so.  The dramatic result creates a perverse incentive for the government to overreach in its surveillance programs, with the knowledge and comfort that it can successfully shut down an entire case simply by showing that any defense of it would reveal state secrets.  

In the companion ruling, Judge Carney dismissed the plaintiffs' FISA claim against the government, but not the individual defendants.  Judge Carney relied on the Ninth Circuit's recent ruling that FISA's civil damages provision did not unequivocally waive sovereign immunity.  But Judge Carney also said that nothing in the civil damages provision stops the suit against the individual defendants.  And the government didn't assert the state secrets privilege over the FISA part of the case.  

As a result, the plaintiffs' FISA claim against the individual defendants appears to go on.  We might expect a government assertion of the state secrets privilege over this remaining part of the case now.  If so, it could face a hurdle: The Northern District of California ruled in In re Nat'l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1120 (2008) that FISA preempts the state secrets privilege with respect to a FISA claim.  While the court cited and discussed the case (in rehearsing the plaintiffs' argument), it's not clear that it would agree with it, or not.

SDS

Ninth Circuit Says No Waiver of Sovereign Immunity in Case Challenging TSP

In the latest and perhaps last chapter of the Al-Haramain case, the Ninth Circuit ruled that the government did not unequivocally waive sovereign immunity through the Foreign Intelligence Surveillance Act civil liability provision, ending the plaintiffs' case challenging the government's terrorist surveillance program.

As the court said, "[t]his case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization."  Op. at 8784.

Recall that the plaintiffs sued under the FISA's civil liability provision for damages resulting from the government's surveillance of them through the TSP.  Most recently, the district court ruled that the state secrets privilege did not foreclose the plaintiffs' suit--that "FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions"--and that the government implicitly waived sovereign immunity through FISA.  The district court ruling would have allowed the case to move forward.

But the Ninth Circuit stopped it.  The court ruled that the government did not unequivocally waive sovereign immunity through the FISA civil damages provision, and therefore the plaintiffs could not sue for damages from the government.

The FISA civil damages provision, 50 U.S.C. Sec. 1810, reads,

An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .

For the court, the key missing phrase was "the United States" (as in "against the United States" or "the United States shall be liable")--a mainstay of statutes in which the government unequivocally waived sovereign immunity.  Without such an unequivocal waiver, the government cannot be sued for damages.

Even with the government off the hook, though, the plaintiffs still could have proceeded against FBI Director Mueller, another defendant in the action (and a "person" under 50 U.S.C. Sec. 1810).  But the court said that the plaintiffs "never vigorously pursued its claim against Mueller" and dismissed it.  Op. at 8797.

The case almost certainly puts an end to the plaintiffs' litigation efforts to hold the government responsible for the TSP.

SDS

Defining Terrorism: Sudha Setty on the War on Terror

The War on Terror obviously requires a definition of "terror" and "terrorism."  Unlike the definitional challenges we discussed yesterday, it is difficult to imagine any Justices of the United States Supreme Court consulting a dictionary to elucidate "terrorism."   Yet perhaps they should.  For, as Professor Sudha Setty (pictured left) argues, the meaning of terrorism is far from clear and there is a "definitional creep" which results in loss of individual rights.

Setty's article, What's in a Name? How Nations Define Terrorism Ten Years After 9/11, forthcoming in University of Pennsylvania Journal of International Law, available on ssrn, compares the definitional quagmire in United States law, as well as in United Nations documents, and in Great Britain and India. 

Setty's article considers the challenges of relying on what she calls "an incomplete and piecemeal definition of terrorism" at the United Nations level in conjunction with the mandate for robust counterterrorism measures in United Nations member states.  The article then examines how the United States, United Kingdom, and India have developed their current legal definitions of terrorism, the application, and the underlying value judgments and policies.  

Without being exhaustive, Setty is comprehensive.  The discussion of the various statutory schemes is excellent and her own analysis cogent.  The comparative approach of the article should be of interest not only to ConLawProfs teaching or writing in the area of comparative constitutional law, but anyone working on US national security issues because of her illuminating comparisons, especially the work of Lord Carlile reviewing the British legislation.

RR

Court Upholds State Secrets in Narrow Ruling

The Supreme Court today unanimously ruled in General Dynamics Corp. v. United States that the state secrets privilege protected certain information from disclosure in a suit against the government by a contractor alleging that the government possessed "superior knowledge" as to the subject of the contract.  The Court ruled that the when a superior knowledge defense would inevitably reveal state secrets, neither party can obtain judicial relief, and the proper remedy is to leave the parties where they were on the day they filed suit.  We previously posted on the case here.

This long-running dispute involved the ill-fated A-12, a planned stealth aircraft that General Dynamics contracted to build for the Navy.  After development delays, the Navy cancelled the program, terminated the contract for default, and demanded $1.35 billion dollars in progress payments for work the government never accepted.  General Dynamics sued in the Court of Federal Claims to challenge the default decision, arguing that the government possessed, but failed to share, "superior knowledge" relating to the aircraft's development.  (The superior knowledge was the stealth technology that the government used for earlier aircraft but that General Dynamics did not have.)  The government claimed that litigation of General Dynamics's superior knowledge claim would inevitably lead to the disclosure of state secrets.

The Court agreed and ruled that "neither party can obtain judicial relief."  Op. at 8.  Thus General Dynamics cannot use protected evidence to prove lack of default; and the government cannot use protected evidence to prove default.  Instead, the proper remedy is to leave the parties where they were when General Dynamics filed suit.  The Court remanded to the Federal Circuit to determine whether and how the case can move forward without the protected evidence.

The unanimous ruling, written by Justice Scalia, clarifies the state secrets privilege in at least this context, secret government contracts, and may shed light on its application beyond this context.

The ruling is narrow by its own terms.  Justice Scalia seems to go to lengths to limit the ruling to government contract disputes involving secret evidence, even to that sub-category involving superior knowledge claims.  He's clear that this case falls within that narrow line of authority applying the state secrets privilege to secret government contracts--Totten v. United States and Tenet v. Doe--and not a broader line applying the privilege more generally (as in United States v. Reynolds) or to a principle that the privilege has no application when the information is necessary to a criminal defense.  Underscoring the narrowness of the ruling, he concludes with this:

In Reynolds, we warned that the state-secrets evidentiary privilege "is not to be lightly invoked."  345 U.S., at 7.  Courts should be even more hesitant to declare a Government contract unenforceable because of state secrets.  It is the option of last resort, available in a very narrow set of circumstances.  Our decision today clarifies the consequences of its use only where it precludes a valid defense in Government-contracting disputes, and only where both sides have enough evidence to survive summary judgment but too many of the relevant facts remain obscured by the state-secrets privilege to enable a reliable judgment.

Op. at 13-14.

But even with this limiting language, the ruling may shed some light on the Court's view of the privilege outside of the narrow facts of this case.  For example, the Court sharply distinguishes between the Totten version of the privilege and the Reynolds version of the privilege--a distinction that has become increasingly murky in the lower courts' rulings and in the government's positions in cases involving, e.g., extraordinary rendition and torture, and that has resulted in an expanded state secrets privilege.  Today's ruling maintains and underscores the traditional distinction between the two versions of the privilege, at least in secret government contracts.  This could lend fodder to those who argue for the traditional distinction between the two privileges (and thus a relatively narrower privilege, at least in relation to the government's position in recent cases) outside secret government contracts.

Another example: The Court emphasizes that the privilege, whether the Totten version or the Reynolds version, is merely an evidentiary privilege--not a constitutional separation-of-powers principle--and that a case can (at least potentially) move forward even absent privileged evidence.  This, too, could lend fodder to those who argue for a more limited privilege--at least more limited than the expansive, separation-of-powers-mandated version that has appeared in recent litigation. 

On the other hand, the opinion also recognizes the need for a state secrets privilege.  Justice Scalia at one point recounts the secret information that mistakenly came out in this case, prompting the Navy to assert the privilege in the first place. 

Given the explicitly narrow ruling, it's not clear how much, if any, of this will guide the Court outside this specific context.

The narrowness of today's ruling allows the Court to dodge the harder questions about the state secrets privilege--questions that it also dodged when it recently declined to hear an appeal of the sharply divided Ninth Circuit's en banc decision affirming the dismissal of Mohamed's claim against Jeppesen for its role in his extraordinary rendition and torture under the state secrets privilege.  But the Court at the same time gave us a glimpse of its answers, at least in the context of government contracting:  The Totten privilege and the Reynolds privilege are different; they are both evidentiary privileges (and not constitutional separation-of-powers privileges); and a case might move forward even after a successful invocation of the privilege.  Whether these answers also apply in cases outside government contracting: We'll have to wait.

SDS