Court Rejects 'State Secrets' Excuse For Why Feds Want Out Of Lawsuit Over NSA Warrantless Wiretapping

from the bogus-excuses dept

While there have been a number of new revelations lately about the NSA's surveillance efforts, there have been some long-running on-going legal disputes about it as well. One of the biggest is Jewel vs. the NSA. When we last checked in on that case, the appeals court had sent the case back to the district court, rejecting many of the reasons that the district court had initially dumped the lawsuit. The key question for the district court was whether or not the feds could claim "state secrets" to dump the case again... and the court has just ruled and rejected that excuse, claiming that the government has not successfully shown that there are state secrets that mean the case cannot move forward.

Defendants contend that Plaintiffs’ lawsuits should be dismissed as a result of the application of the privilege because the state secrets information is so central to the subject matter of the suit that permitting further proceedings would jeopardize national security. Given the multiple public disclosures of information regarding the surveillance program, the Court does not find that the very subject matter of the suits constitutes a state secret. Just as in Al-Haramain, and based significantly on the same set of facts in the record here, the Court finds that although there are certainly details that the government has not yet disclosed,

because of the voluntary disclosures made by various officials since December 2005, the nature and purpose of the [Terrorist Surveillance Program], the ‘type’ of persons it targeted, and even some of its procedures are not state secrets. In other words, the government’s many attempts to assuage citizens’ fears that they have not been surveilled now doom the government’s assertion that the very subject matter of this litigation, the existence of a warrantless surveillance program, is barred by the state secrets privilege.

507 F.3d at 1200; see also Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 986-88, 991 (N.D. Cal. 2006) (holding that the existence of a program of monitoring the contents of certain telephone communications was no longer a state secret as a result of the public statements made by the President and the Attorney General). Accordingly, the Court does not find dismissal appropriate based on the subject matter of the suits being a state secret.

This is a big win for the EFF, which is representing Jewel in trying to sue the government over the warrantless wiretapping. Given other cases (including the Hepting case mentioned in this ruling) which basically said that people can't sue the telcos, but can sue the government, it would be nice to actually be able to sue the government over these actions without them simply being able to declare "state secrets" and have the case thrown out completely.

This does not mean that there aren't issues that involve state secrets in the case -- and the court notes that certainly parts of the evidence and information do need to be kept secret. But that's no excuse for throwing out the entire case. Of course, the ruling also has some unfortunate things in it as well, dismissing statutory claims based on "sovereign immunity." However, it leaves open the non-statutory claims for further briefing. So the case moves forward, rather than being completely shut down by a state secrets claim, but there are some limitations on where it can go. Still, given all of the recent revelations, not being able to hide completely behind "state secrets" is a big step in the right direction.

Filed Under: jewel v nsa, nsa, state secrets, warrantless wiretapping

Judge Calls Out Obama Admin For Overuse Of State Secrets Privilege In No-Fly Case

from the facts-in-evidence dept

President Barack Obama appears to look at the state secrets privilege in the United States the same way past Presidents have: it's a horrific injustice all the way up to the exact moment when it becomes available to them to use. For instance, after publicly campaigning against the Bush administration's use of state secrets exemptions to block litigation over the Patriot Act, he then leaned on them over something as relatively benign as copyright treaties. When it comes to state secrets, there are two related but slightly different issues at play. First, the government tends to be somewhat paranoid when it comes to classifying information in general. Second, but related, is the fact that state secrets are usually invoked domestically under the idea that United States citizens need to be protected against information coming out in the course of legal proceedings. What you end up with from those two issues is a government that keeps pertinent information hidden from its own constituency, often with that information being over-classified. The results of that intersection can often seem laughably paranoid.

Such is the case in a suit brought against the government by a Malaysian citizen, Rahinah Ibrahim, who had been a student at Stanford when she was denied air travel and detained in San Francisco in 2005, the apparent result of being on the no-fly list. U.S. District Judge William Alsup has sharply diverted from his peers in the case, challenging the government's assertion of state-secrets exemptions for evidence in the case.

In an order issued earlier this month and made public Friday, Alsup instructed lawyers for the government to "show cause" why at least nine documents it labeled as classified should not be turned over to Ibrahim's lawyers. Alsup said he'd examined the documents and concluded that portions of some of them and the entirety of others could be shown to Ibrahim's attorneys without implicating national security.

"After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced with little or no modifications to them," Alsup wrote in an April 2 order (posted here). "This order independently determines that in addition to correspondence between the parties, the two internal training documents are eligible for production to plaintiff’s counsel without implicating national security."

For the most part, Alsup's reasoning appears as banal as it does just. Several of the documents requested by Ibrahim's lawyers are antiquated to the point that their being revealed should pose no danger to national security. This would still be important, since judges as a rule shy away from challenging the White House over classification on national security grounds. Alsup offers his reasons for the challenge, stating that the documents are highly pertinent to the case, that the suit on constitutional grounds is proper, and that the information contained within the documents cannot be obtained anywhere else. In other words, any minimal risk in exposing the documents is trumped by Ibrahim's rights as the plaintif in seeking justice.

But the real highlight of how silly this all can get is that the government is attempting to include correspondence between Ibrahim and the government as classified. This, Judge Alsup points out, simply cannot be the case. Driving the hypocrisy of the matter home is that Attorney General Eric Holder filed a declaration in the case, supporting the states-secrets claims. Holder, it should be noted, is an appointee of President Obama, who promised reforms in the use of state-secrets.

In summary, past administrations were vilified for doing exactly what Obama is doing now. That is, unless Judge Alsup's challenge succeeds.

Filed Under: obama, state secrets

Will Visa, MasterCard, Paypal, BofA & Apple Terminate Relationships With The NYTimes For Revealing Military Secrets?

from the consistency-is-all-i-ask dept

Glenn Greenwald has a post highlighting how a NY Times' investigative report on US military action in Pakistan appears to reveal key military secrets concerning plans that have not yet been put in place, and which could certainly put Americans and others in danger:

Indeed, the NYT reporters several times acknowledge that public awareness of these operations could trigger serious harm ("inside Pakistan, [] the movement of American forces has been largely prohibited because of fears of provoking a backlash"). Note, too, that Mazzetti and Filkins did not acquire these government secrets by just passively sitting around and having them delivered out of the blue. To the contrary: they interviewed multiple officials both in Washington and in Afghanistan, offered several of them anonymity to induce them to reveal secrets, and even provoked officials to provide detailed accounts of past secret actions in Pakistan, including CIA-directed attacks by Afghans inside that country.

As he notes, all of this seems a lot more revealing than anything that Wikileaks has done, and a lot more likely to put people in danger. Yet, there's been almost no response, and certainly nothing like the attention paid to Wikileaks -- with calls for trials or even killing the head of Wikileaks. Seems odd, doesn't it?

But, an even bigger point is buried towards the end in an update, where Greenwald asks:

Why aren't Visa, MasterCard, Paypal, their web hosting company and various banks terminating their relationships with The New York Times, the way they all did with WikiLeaks: not only for the NYT's publication of many of the same diplomatic and war cables published by WikiLeaks, but also for this much more serious leak today in which WikiLeaks was completely uninvolved?

And, I think, we can add Apple to that list. After all, if these companies keep claiming that Wikileaks "broke the law" (as most of the companies listed here are saying), why do they not feel the same way about the NY Times?

Filed Under: hypocrisy, journalism, state secrets, wikileaks
Companies: apple, mastercard, ny times, paypal, visa

Whether Or Not The TSA Has Ever Caught A Terrorist Is Apparently A State Secret

from the which-means-no dept

We asked recently if there was any evidence, ever, that the TSA's security procedures prevented an attack on an airplane. Last week the TSA claimed, without any details, that its procedures had stopped 130 "prohibited, illegal or dangerous items" from getting on airplanes in the last year. But it provides no details. And, in a day when a bottle of water and nail clippers are considered "prohibited," it's difficult to judge if this actually means anything.

Over at Slate, Juliet Lapidos tries to dig into the question, but the TSA won't point out a single specific case claiming it's a "national security" issue. Huh? Actually telling us whether or not the naked scans and crotch grabs catch anyone is a state secret? That seems likely to mean that the answer is, no, they have not caught anyone or stopped any attempted attack, and they're just too embarrassed to say so. In fact, Lapidos points out that, in years past, the TSA has publicly announced when it "caught" someone -- as in the one time, nearly three years ago, it found a guy who had enough materials in his (checked) suitcase to make a pipe-bomb. Of course, there wasn't an actual pipe bomb in the suitcase, so it wasn't going to blow up the plane or anything.

So, in effect, it seems pretty clear that the security screening process isn't catching anyone. Of course, supporters might claim that terrorists are too scared off by the screenings, so that's why we're safe. But that makes little sense. As Jeffrey Goldberg showed a few years back, it's quite easy to get things past the security screenings if you really want to. This is security theater, plain and simple. And the TSA must know that. Which is why it's a "state secret."

Filed Under: security, state secrets, terrorism, tsa

Administration Finally Releasing Some Info On Telco Immunity Lobbying

from the quite-a-fight dept

After many attempts to block or delay the release of info on who lobbied the federal government last year for telco immunity in lawsuits involving the fed's warrantless wiretapping program, the government has finally agreed to hand over some of the information requested. Of course, since the administration had already won a longer delay, and only some of the info is being revealed, I'm guessing that there isn't much surprising in what's being released -- though it makes you wonder why the administration went to such lengths to hide it.

Filed Under: lobbying, obama, state secrets, warrantless wiretapping
Companies: eff

Obama Administration Uses 'State Secrets' Clause To Try To Block All Warrantless Wiretapping Cases

from the transparency-is-dead dept

Despite new rules from the Obama administration that are supposed to reduce the use of "state secrets" claims to avoid revealing certain information, the first use of such a claim out of the administration since change the rules is to (once again) try to stop lawsuits involving warrantless wiretapping efforts by the federal government that began under the Bush administration. Again, this is disappointing. It remains difficult for me to see how anyone can justify a warrantless wiretapping program. I have no problem with a wiretapping program that has judicial oversight, but how can anyone defend a system that had no oversight at all?

Filed Under: obama, state secrets, warrantless wiretapping

Obama Administration: New State Secrets Rules = Really, You Can Trust Us

from the uh... dept

So, we keep seeing more of what the promised "transparency" of the Obama administration means in real terms. Despite campaigning against warrantless wiretapping, the administration has come out with new rules for how it will use the "state secrets" privilege that amount to "no, really, we'll only use it when we need to... just trust us" and continued to insist that evidence over warrantless wiretapping should be tossed out for state secrets reasons. And it's left up to a former comedian, now politician to remind the Justice Department of the Fourth Amendment? The "just trust us, we won't abuse the system" justification isn't particularly comforting, especially when that clause is being used to cover up what is almost certainly illegal activity by the federal government.

Filed Under: doj, oversight, state secrets, transparency, warrantless wiretaps

Obama Administration Claims Copyright Treaty Involves State Secrets?!?

from the openness,-transparency dept

Plenty of folks are quite concerned about the Anti-Counterfeiting Trade Agreement (ACTA) negotiations are being negotiated in secret. This is a treaty that (from the documents that have leaked so far) is quite troubling. It likely will effectively require various countries, including the US, to update copyright laws in a draconian manner. Furthermore, the negotiators have met with entertainment industry representatives multiple times, and there are indications that those representatives have contributed language and ideas to the treaty. But, the public? The folks actually impacted by all of this? We've been kept in the dark, despite repeated requests for more information. So far, the response from the government had been "sorry, we always negotiate these things in secret, so we'll keep doing so." At one point, even the ACTA negotiators held a closed-door meeting and then released a press release saying they discussed being more transparent, but haven't actually followed through.

When the Obama administration took over, there was a public stance that this administration was going to be more transparent -- especially with regards to things like Freedom of Information Act requests. The nonprofit group Knowledge Ecology International took that to heart and filed an FOIA request to get more info on ACTA. The US Trade Representative's Office responded denying the request, saying that the information was "classified in the interest of national security pursuant to Executive Order 12958." This is a treaty about changing copyright law, not sending missiles somewhere. To claim that it's a national security matter is just downright scary. As KEI points out, the text of the documents requested have been available to tons of people, including more than 30 governments around the world and lobbyists from the entertainment industry, pharma industry and publishing industry.

But when the public asks for them, we're told they're state secrets? This is transparency? This is openness?

As Declan McCullagh points out at News.com, Executive Order 12958 only allows material to be classified if revealing it would do "damage to the national security and the original classification authority is able to identify or describe the damage." Can the US Trade Representative please describe the damage to national security if the public gets to see what's being proposed that would require governments around the country to enact significantly more draconian intellectual property laws?

Filed Under: acta, copyright, national security, secrecy, state secrets, sunlight, trade agreements

How Do You Prove You Were Warrantlessly Wiretapped If It's A Secret?

from the the-amazing-legal-obstacle-course dept

As we continue to debate the question of telco immunity, there's a separate, but related legal issue that's worth paying attention to as well: the question of who can actually sue about having their rights abused by supposedly warrantless wiretaps. Earlier this year, the Supreme Court ruled that various groups such as the ACLU couldn't sue because they had no "standing" (i.e., proof that they were impacted by the warrantless wiretaps). It's a bit convoluted when you think about it: there's no way to determine if illegal spying took place because the only way you could get the evidence would be to first prove you have the evidence that it took place. But if you think that's twisted, it gets even more bizarre.

It turns out that in one related case, the government accidentally sent over proof that it used a warrantless wiretap to monitor a certain group. Thus, that group can actually show it has standing... sorta. One of the lawyers involved in pushing just such a lawsuit forward has a stunning tale explaining the amazing obstacle course he had to traverse to actually have this lawsuit move forward (and it's not over yet). Basically, the government claims the information in the document is still secret, even though it gave it out, and some of the details have been reported on the news (in business contexts once info is out, it's no longer secret -- apparently, not so with the government).

Where things get really bizarre, though, is in how the lawyers on this case can actually deal with this evidence it has. Basically, they had to destroy all copies they had of the evidence in question, and can sort of obliquely refer to it from memory in secret filings that are written under the watchful eye of the Justice Department, officially to make sure that the "classified info" remains classified. Even better, the lawyers had to respond to a secret filing from the Justice Department that the lawyers weren't even allowed to see. The case is far from over -- as the latest ruling basically set up another ridiculous tightrope for the lawyers to walk -- basically saying that they can't use the evidence in the document because it would prove their case. Instead, they first have to prove it without the document, and then if they do that, they can use the document (after it's basically no longer necessary). And there's all sorts of side amusements, such as reading about how the Justice Department tries to destroy the lawyer's computer to make sure there's no secret documents on there (it's like a scene from a bad comedy, where they discover that simply banging a hard drive on a table isn't an effective way to damage it). And, there's also the bit where the Justice Department refuses to let one lawyer take part in the drafting of the secret filing because they just don't like him.

This has gone way beyond protecting state secrets or providing security and protection to American Citizens. As you read the details, it's quite clear this is about doing whatever possible to hide what was almost certainly an illegal move by the administration. If telecom immunity is granted, then this particular case, Al Haramain v. Bush, would basically be the only case left that looks into the legality of warrantless wiretapping. Say what you want about the importance of protecting US citizens, the American Constitution set up a system of checks and balances for a very good reason: so no single group has enough power to make the rules itself. This whole thing shows how the executive branch is trying to guarantee there are no checks or balances on some of its activities. That's a very scary precedent and on that anyone -- no matter what your political persuasion -- should be against.

Filed Under: al haramain, immunity, state secrets, warrantless, wiretaps