4-2-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted at The Huffington Post
Earlier this week, a federal court judge in San Francisco ruled that the Bush administration had illegally wiretapped an Islamic charity and its lawyers without a warrant. The case is notable not only for the judge’s decisive ruling that government officials deliberately broke the law. It’s also important for its implicit finding that the government, using the so-called “state secrets privilege,” tried to cover up the crime.
On Tuesday, Judge Walker ruled that the National Security Agency had violated the Foreign Intelligence Surveillance Act, or FISA, by tapping the phones of the Al-Haramain Islamic Foundation and two of its lawyers without first getting a warrant.
The government all along hadn’t actually denied the warrantless wiretapping; it had just refused to turn over information about the NSA’s program, insisting that such data would reveal “state secrets” and endanger national security. Never mind that the government could have produced the relevant documents “in camera” – only for the judge’s review – as FISA requires. It still refused, saying the state secrets privilege trumped the requirements of FISA.
Judge Walker disagreed. This week, based on the non-classified information he had available, he ruled that the government had broken the law.
But it wasn’t just the warrantless wiretapping that concerned the judge in this case. Walker also emphasized the importance of not counting on the government alone to protect our civil liberties, given the “obvious potential for governmental abuse and overreaching inherent in [the government’s] theory of unfettered executive-branch discretion”.
The government is applying that same “theory of unfettered executive-branch discretion” in several other cases alleging government lawbreaking – including cases involving extraordinary rendition and torture.
In Mohamed v. Jeppesen Dataplan, for example, five victims of the Bush administration’s program of “extraordinary rendition” claim they were secretly flown to CIA “black sites” and tortured, with the help of Jeppesen Dataplan, a subsidiary of Boeing. The government had already claimed it was immune from suit, so the victims sued Jeppesen for damages, claiming the company knew full well that it was helping the government transport the men to other countries where they’d be interrogated under torture.
In 2007, the Justice Department intervened in the case and asked the court to dismiss it, arguing that allowing the lawsuit to proceed would reveal “state secrets” – specifically, information about the Bush administration’s extraordinary rendition program, which by then had already been widely publicized.
When President Obama took office, he explicitly banned the use of torture in interrogations and announced an end to extraordinary rendition. But within months, the Justice Department asserted in court that it would maintained the same position as its predecessors in the Jeppesen case – that it must be dismissed to conceal information about the supposedly defunct NSA program.
The case is now on appeal. But if the government has its way, the claims will be dismissed, the victims will never get their day in court, and the public will never know what really happened to these or any other suspects who may have been sent overseas to be tortured.
The State Secrets Protection Act, now pending in the House and Senate, would prevent the government from using the state secrets privilege to dismiss cases in order to cover up official crimes. Instead of dismissing the entire case, the judge would have to examine the evidence to see if it really does reveal state secrets – for example, the identity of a CIA agent or a secret intelligence program – and see if it’s possible to remove just that evidence from the case or otherwise protect it from public disclosure. The case could then move forward without jeopardizing national security.
If all cases were being heard by Judge Vaughn Walker, who ruled for the Al Haramain Islamic Foundation this week, perhaps a new law wouldn’t be necessary. But many judges have more readily deferred to the government’s unilateral claims that cases charging government wrongdoing must be dismissed to protect national security.
Congress shouldn’t be letting the executive branch get away with that.