Obama Lawyers Invoke "State Secrets" to Block Warrantless Spying Lawsuit

Posted by Liliana Segura, AlterNet at 10:15 AM on April 6, 2009.

Oops, they did it again: lawyers for Barack Obama's Department of Justice have invoked the "state secrets" privilege to block a lawsuit seeking to reverse one of the most scandalous policies of the Bush administration.
In a motion filed in a San Francisco court on Friday, attorneys for the Obama administration moved to dismiss a challenge to the National Security Agency's notorious warrantless wiretapping program. "The information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security," DOJ lawyers argued in the 36-page brief, echoing an argument made ad nauseum by the Bush administration.

The case, Jewel v. NSA, was filed in September of 2008 on behalf of five AT&T customers "to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records," according to the Electronic Frontier Foundation, the civil liberties organization that brought forth the suit. "Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA."
Klein, the whistleblower who blew the lid off AT&T's participation in the NSA spying program, was an employee at AT&T for 22 years but showed no qualms about exposing the company. "If they've done something massively illegal and unconstitutional -- well, they should suffer the consequences," Klein told the Washington Post in 2007. Teaming up with EFF, Klein has played a critical role in furnishing the evidence for multiple lawsuits brought against the NSA's spying program, including Hepting v. AT&T, a class-action lawsuit against AT&T itself. (That case was brought forth in 2006, before Congress passed legislation granting immunity to telecoms that participated in the government's warrantless wiretapping program.)
Although Jewel v. NSA is not a lawsuit against AT&T, the DOJ's court motion displays its full support for the company. "All of plaintiffs' claims require the disclosure of whether or not AT&T assisted the Government in alleged intelligence activities, and the (Director of National Intelligence) again has demonstrated that disclosure of whether the NSA has an intelligence relationship with a particular private company would also cause exceptional harm to national security"
It may have been fantasy to imagine that the Obama DOJ would allow AT&T -- whose corporate logo graced the official goody bags at the Democratic National Convention this summer -- to be at all vulnerable to litigation for its role in the warrantless wiretapping scheme, particularly after Obama himself cast a vote for telecom immunity. But its invoking of the state secrets privilege is a disturbing move -- particularly because it is not the first time it has done so.

On Monday EFF sent out a press release condemning the Obama administration's use of state secrets privilege to conceal the government's criminal activity. "President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties," Senior Staff Attorney Kevin Bankston said in a written statement. "But with the Obama Justice Department continuing the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts, it feels like deja vu all over again."
Why is the Obama Administration Protecting Bush Officials?
Over e-mail, Cindy Cohn, legal director of EFF, called the legal filing by Obama's DOJ "very significant." "Obama is attempting to block the courts from considering serious constitutional issues raised in this case entirely," she said. "This is the sort of disdain for the rule of law and the role of the courts that he campaigned against."

Cohn added, "It's also a continuation of the outrageous secrecy claims that Bush was criticized for -- after all, the warrantless wiretapping is hardly a secret. We presented a box of Congressional testimony, Congressional admissions, news stories, and even a few books to the court describing it. The argument that this is still a secret really strains belief."

Jewel v. NSA is not just a lawsuit against the NSA. It is also a lawsuit against the individuals who created the government's spying program, including George W. Bush and his senior staff.

As Raw Story's John Byrne points out, "in attempting to block a San Fransisco court from reviewing documents relating to the NSA program, the Obama Administration is also protecting other individuals named as defendants in the suit: Vice President Dick Cheney, former Cheney chief of staff David Addington and former Bush Attorney General Alberto Gonzales." These, of course, are the same individuals many Americans would like to see prosecuted for their role in implementing the government's "harsh interrogation" policies. But on the question of torture, the Obama administration has shown no inclination to bring former Bush officials to account.
Quite the opposite. In February Obama lawyers used the same "state secrets" tactic to block a lawsuit brought by the ACLU on behalf of five victims of extraordinary rendition -- the CIA's famed kidnap and torture program. "This case cannot be litigated," Department of Justice lawyer Douglas Letter declared on February 9th, arguing that the case, Mohamed et al. v. Jeppesen Dataplan, should be thrown out. "The judges shouldn't play with fire in this national security situation."
ACLU director Anthony Romero decried the move. "Eric Holder's Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government."

Now, warrantless spying can be added to the list.

"In our case we have no reason to believe that the warrantless wiretapping has ended," said Cohn, "so at some point we have to call it Obama's warrantless wiretapping."

Tagged as: torture, extraordinary rendition, barack obama, aclu, at&t, department of justice, state secrets, jeppesen dataplan, eric holder, warratless wiretapping, mark klein, electronic frontier found

Liliana Segura is a staff writer and editor of AlterNet's Rights and Liberties and War on Iraq Special Coverage.