State Secrets, Courts, & NSA’s Illegal Wiretapping

Posted by Julian Sanchez
Courtesy Of CATO-at-Liberty

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, theSupreme 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 thoughsomething 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 wasentitled 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.

Julian Sanchez • April 1, 2010 @ 12:55 pm
Filed under: General; Law and Civil Liberties
Tags: 9/11, civil libertarians, electronic surveillance, executive power, FISA, foreign intelligence surveillance act, government, intelligence, john yoo, jurisprudence, justice, justice department, NSA,Obama administration, Office of Legal Counsel, state secrets, Supreme Court, surveillance, Taliban,warrantless wiretapping, wiretap, wiretapping

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Revealing Bush's Secret Laws

The Newly Released Secret Laws Of The Bush Administration

By Glenn Greenwald
Tuesday March 3, 2009 06:31 EST
Courtesy Of The Salon Media Group

Reviewing yesterday's front page of the print edition of The New York Times prompted this observation from Digby:

I looked at the front page of the paper this morning and wondered for a moment if I was looking at one of those historical documents about which scholars would wonder if those who read it in real time had a clue about the scale of what was happening.

There's a run on the banks in Ukraine, the world's biggest insurer suffered the highest quarterly losses in corporate history, Europe is starting to come apart -- with Germany being the lead player. Major change seems to be rumbling in a bunch of different ways right now --- with echoes of the past overlaid with things we've never seen before. Maybe it's just a blip. But maybe not.

Various universal perception biases always make it difficult to assess how genuinely consequential contemporary events are: events in the present always seem more important than ones in the past; those that affect us directly appear more significant than those that are abstract, etc. (though powers of denial -- e.g.: all of those bad things I've read about in history can't happen to me and my country and my time -- undercut those biases). Whatever else is true, it seems undeniably clear, at the very least, that the extreme decay and instabilities left in the wake of the Bush presidency will alter many aspects of the social order in radical and irrevocable (albeit presently unknowable) ways.

One of the central facts that we, collectively, have not yet come to terms with is how extremist and radical were the people running the country for the last eight years. That condition, by itself, made it virtually inevitable that the resulting damage would be severe and fundamental, even irreversible in some sense. It's just not possible to have a rotting, bloated, deeply corrupt and completely insular political ruling class -- operating behind impenetrable walls of secrecy -- and avoid the devastation that is now becoming so manifest. It's just a matter of basic cause and effect.

Yet those who have spent the last several years pointing out how unprecedentedly extremist and radical was our political leadership (and how meek and complicit were our other key institutions) were invariably dismissed as shrill hysterics. As but one of countless highly illustrative examples, here is a November, 2004 David Broder column scoffing at the notion that there was anything radical or unusual taking place in the U.S., dismissively deriding the claim that there was anything resembling an erosion of basic checks and safeguards in the United States:

Bush won, but he will have to work within the system for whatever he gets. Checks and balances are still there. The nation does not face "another dark age," unless you consider politics with all its tradeoffs and bargaining a black art.

That was (and still is) the prevailing attitude among our political and media elites: it was those who were sounding alarm bells about the radicalism and damage of the Bush administration -- not Bush officials themselves -- who were the real radicals and, worst of all, were deeply Unserious.

* * * * *

Yesterday, the Obama administration, to its credit, took steps towards fulfilling an important promise by disclosing -- in response to a long-standing, hard-fought ACLU lawsuit for disclosure -- multiple DOJ documents that contained Bush administration decrees with regard to government power (these are the documents that formed what, literally, was the regime of secret laws under which we were ruled for the last eight years). Unlike the NYT front page which Digby examined yesterday, even a quick review of these newly disclosed documents leaves no doubt about their historical significance. They are the grotesque blueprint for what the U.S. Government became, laid out so starkly that even the David Broders of the world could recognize their extremism.

Let's just look at one of those documents (.pdf) -- entitled "Authority for Use of Military Force to Combat Terrorist Activities Within the U.S." It was sent to (and requested by) Defense Department General Counsel William J. Haynes and authored by Assistant Attorney General John Yoo and DOJ Special Counsel Robert Delahunty. But it's not a "Yoo memo." Rather, it was the official and formal position of the U.S. Government -- at least of the omnipotent Executive Branch -- from the time it was issued until just several before George Bush left office (January 15, 2009), when OLC Chief Stephen Bradbury abruptly issued a memo withdrawing, denouncing and repudiating both its reasoning and conclusions.

The essence of this document was to declare that George Bush had the authority (a) to deploy the U.S. military inside the U.S., (b) directed at foreign nationals and U.S. citizens alike; (c) unconstrained by any Constitutional limits, including those of the First, Fourth and Fifth Amendments. It was nothing less than an explicit decree that, when it comes to Presidential power, the Bill of Rights was suspended, even on U.S. soil and as applied to U.S. citizens. And it wasn't only a decree that existed in theory; this secret proclamation that the Fourth Amendment was inapplicable to what the document calls "domestic military operations" was, among other things, the basis on which Bush ordered the NSA, an arm of the U.S. military, to turn inwards and begin spying -- in secret and with no oversight -- on the electronic communications (telephone calls and emails) of U.S. citizens on U.S. soil.

That the U.S. Government had suspended the Fourth Amendment itself isn't exactly news. A fleeting reference to that event (largely ignored by the media) was made in a footnote to one of Yoo's previously released torture memos (release of which was also compelled not by the U.S. Congress or the media, but by the ACLU). But reading the document that actually effectuated (in secret) that suspension -- released only yesterday -- is genuinely breathtaking.

First, the document states its general conclusion regarding the President's authority to use military force inside the U.S.:

The President not only possesses these powers, but can wield them -- including within the U.S. -- independent of anything Congress or the courts do:

Long-standing laws that were enacted precisely to limit the use of the U.S. military inside the U.S. and against U.S. citizens -- such as the Posse Comitatus Act -- have no application:

No limits -- not even those in the Bill of Rights, such as those imposed by the Fourth Amendment -- are applicable to the President's use of the U.S. military inside the U.S. Thus, the President can order the U.S. military to search or invade our homes or eavesdrop on our communications (as he did) all without warrants or any Constitutional constraints of any kind:

The President's power to use military force domestically in violation of the Bill of Rights applies equally even if the actions are ordered against American citizens on U.S. soil:

The President, when using military force against American citizens on U.S. soil, is "free from the constraints" not only of the Fourth Amendment, but also of other core guarantees of the Bill of Rights -- including First Amendment liberties, Due Process rights, and the takings clause:

If this isn't the unadorned face of warped authoritarian extremism, what is? And that's just one of the numerous documents that were released yesterday. Others vested the President with the power to imprison American citizens on U.S. soil indefinitely without charges of any kind.

Let's underscore: these weren't just abstract theories. They served as the basis for many U.S. government actions. Military actions were, in fact, directed at American citizens on U.S. soil (that's what the NSA program was, as but one example). Both legal residents and American citizens captured on U.S. soil were put in cages for years with no trial or charges of any kind. And, of course, the U.S. instituted a systematic torture regime that led to the brutalization and even deaths of many detainees in our custody.

* * * * *

More amazingly still, there is almost certainly a whole slew of other activities that remain concealed, and very well may remain undisclosed for years, as a result of the creepy Orwellian slogans embraced in unison by our political class -- look towards the future, not the past!; only "liberal score-settlers" want an investigation of any of this." That mentality is being aided by a new administration that seems bizarrely desperate to keep concealed the secrets of the old one. As but one example, we know that the Bush administration was engaged in certain surveillance activities aimed at U.S. citizens that were so patently illegal and wrong that even the right-wing fanatics in Bush's own Justice Department (such as John Aschroft) threatened to resign immediately if they didn't cease, yet we still, to this day, don't know what those domestic surveillance activities were.

The most vital point is that all of the documents released yesterday by the Obama DOJ comprise nothing less than a regime of secret laws under which we were governed. Nothing was redacted when those documents yesterday were released because they don't contain any national security secrets. They're nothing more than legal decrees, written by lawyers. They're just laws that were implemented with no acts of Congress, unilaterally by the Executive branch. Yet even the very laws that governed us were kept secret for eight years.

This is factually true, with no hyperbole: Over the last eight years, we had a system in place where we pretended that our "laws" were the things enacted out in the open by our Congress and that were set forth by the Constitution. The reality, though, was that our Government secretly vested itself with the power to ignore those public laws, to declare them invalid, and instead, create a whole regimen of secret laws that vested tyrannical, monarchical power in the President. Nobody knew what those secret laws were because even Congress, despite a few lame and meek requests, was denied access to them. What kind of country lives under secret laws?

No special knowledge or elaborate debates are required to see how violently inconsistent all of this is with the system of Government we claim to have. Even Fox News' Shepard Smith yesterday, when describing how the Bush administration imprisoned Ali Al-Marri for the last five years with no trial, reacted with extreme anger over what was done:

He has been held in a military prison for more than five years — not Chris Wallace — this next person. And he wasn’t ever charged. Think about that. I mean just think about it fundamentally. You are held for five years in prison, and you’re never charged! Oh well it was an al-Qaeda suspect, suspected al-Qaeda operative. Who cares who it is?! You don’t get to — this is America; you do not get to hold people for five years without — actually, you do. But he’s getting its day in court now.

Apparently, Shepard Smith hadn't heard until this week that the Bush administration was imprisoning people -- including American citizens -- for years without charges. Better late than never. But it wasn't merely the fact that this was done, but was done pursuant to a regime of secret laws that explicitly vested the President with these powers, that makes it so radical.

Yet we never really came to terms -- and still haven't -- with just how extremist and radical and tyrannical this all was. Instead, we had the David Broders of the world (the Dean of the Washington Press Corps) mocking those who pointed it out and assuring us that we had a robust system of "checks and balances" in place to prevent any actual mischief (what are the "checks and balances" against a Government that rules by secret laws and that declares the Bill of Rights inapplicable to itself?). And we had leaders of both political parties and (with some noble exceptions) an establishment media that submitted to all of this and were either supportive of it all or pitifully afraid to criticize it. The extremism and radicalism thus ran amok, unconstrained by any opposing forces, and now we see the results in the wreckage around us.

And yet even with all of that, our political elites -- the same people who enabled all of this and cheered it on -- are doing everything possible to ensure that none of it gets examined and that there's no accountability for any of it, even if (or rather: especially if) it involves extreme acts of criminality at the highest levels of government. In fact, the only reason we know about most of it -- such as the CIA's destruction of 92 interrogations videos, at the direction of the White House, despite the direct relevance of that evidence to numerous pending investigations (that's called "obstruction of justice," a felony) -- is because groups like the ACLU (with whom I consult), EFF, the Center for Constitutional Rights and others have been so tenacious about trying to compel its disclosure and combat it. If our political class had its way, even the bits and pieces we've now seen would continue to be hidden in the dark.

Most of the specific individuals who initiated these measures may no longer be in power, but the institutions and the political and media elites who enabled all of it haven't gone anywhere. They're now actively working to keep as much as possible concealed and to insist that nothing should be done about any of it. It should all just be forgotten, blissfully erased from our memories, so that none of those responsible are held accountable in any way and can simply continue doing what they've been doing without disruption. Does that sound like a particularly promising recipe for "ensuring that this never happens again"?

UPDATE: Harper's columnist and international human rights lawyer Scott Horton:

We may not have realized it at the time, but in the period from late 2001-January 19, 2009, this country was a dictatorship. The constitutional rights we learned about in high school civics were suspended. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution. What we know now is likely the least of it.

How shrill. And what's all this complaining about how we still don't know much of what was done by our Government? As though we need to know or should know. Hasn't Horton heard? There are apparently all sorts of good reasons to engage in desperate measures to keep the actions of the Bush administration concealed and prevent courts from ruling on whether it was all legal. And only vengeful liberal score-settlers think we need to find out what happened. Serious people -- self-proclaimed centrists -- know that we must be blissfully content with our ignorance and lack of accountability.

Look to the future, not the past.

Currently in Glenn Greenwald's Blog

The newly released secret laws of the Bush administration

Long concealed Justice Department memoranda reveal the true extent of the extremism and radicalism prevailing in the U.S. over the last eight years.

Tuesday, Mar 3, 2009 14:31 EST

Is Obama embracing the lawless, omnipotent executive?

To prevent a ruling on whether Bush's NSA program was illegal, the Obama DOJ is on the verge of defying a court order, and justifying its defiance with Cheney/Addington theories of executive power. Monday, Mar 2, 2009 16:45 EST

Obama's efforts to block a judicial ruling on Bush's illegal eavesdropping

The Obama DOJ engages in still more efforts to preserve the detention and secrecy architecture built by its predecessors.Saturday, Feb 28, 2009 14:43 EST

The corruption of the cocoon

Many politicians, journalists and pundits simply ignore all criticisms and avoid critics -- because there is no real price to pay from doing so.

Continuity Of The Wrong Kind

Editorial
Published: February 10, 2009
Courtesy Of The New York Times

The Obama administration failed — miserably — the first test of its commitment to ditching the extravagant legal claims used by the Bush administration to try to impose blanket secrecy on anti-terrorism policies and avoid accountability for serial abuses of the law.

On Monday, a Justice Department lawyer dispatched by the new attorney general, Eric Holder, appeared before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco. The case before them involves serious allegations of torture by five victims of President Bush’s extraordinary rendition program. The five were seized and transported to American facilities abroad or to countries known for torturing prisoners.

Incredibly, the federal lawyer advanced the same expansive state-secrets argument that was pressed by Mr. Bush’s lawyers to get a trial court to dismiss the case without any evidence being presented. It was as if last month’s inauguration had never occurred.

Voters have good reason to feel betrayed if they took Mr. Obama seriously on the campaign trail when he criticized the Bush administration’s tactic of stretching the state-secrets privilege to get lawsuits tossed out of court. Even judges on the panel seemed surprised by the administration’s decision to go forward instead of requesting a delay to reconsider the government’s position and, perhaps, file new briefs.

The argument is that the very subject matter of the suit is a state secret so sensitive that it cannot be discussed in court, and it is no more persuasive now than it was when the Bush team pioneered it. For one thing, there is ample public information available about the C.I.A.’s rendition, detention and coercive interrogation programs. The fact that some of the evidence might be legitimately excluded on national security grounds need not preclude the case from being tried, and allowing the judge to make that determination. More fundamentally, the Obama administration should not be invoking state secrets to cover up charges of rendition and torture.

President Obama has taken some important steps to repair Mr. Bush’s damaging legacy — issuing executive orders to prohibit torture, shut secret prisons overseas and direct closure of the detention camp at Guantánamo Bay, Cuba. It would have been good if he and Mr. Holder had shown the same determination in that federal court, rather than defending the indefensible.