Blog
Checks & Balances
By David Shapiro – 04/02/10
The Muslim charity that alleged the government eavesdropped on its calls without obtaining a warrant won its lawsuit on Wednesday, March 31, 2010. The court did not decide directly whether warrantless wiretapping violates the law, instead, the ruling is important for another reason: the court refused to let the government use the state secrets privilege as a tool to derail litigation.
This was not the first time the government used the state secrets privilege – a doctrine that that allows the government to block evidence thought to compromise national security – in this case. Earlier, the government invoked the privilege to demand dismissal of the entire suit. In 2007, an appeals court rebuffed this attempt to eliminate the litigation outright and sent the case back to the district court.
In the latest round, the government refused to submit evidence to the district court both on whether surveillance occurred and whether a warrant existed, claiming that such matters qualified as state secrets. But this argument contradicted the Foreign Intelligence Surveillance Act, which creates a mechanism for the government to submit evidence to the court on these very issues. In keeping with the law Congress passed, the court rejected this second attempt to use the state secrets privilege to block the litigation.
Read NY Times coverage of the case.
Read the opinion (pdf).
Tags: Justice, Racial Justice, Liberty & National Security, Checks & Balances, Privacy & Profiling
By Liza Goitein – 04/29/09
Cross-posted from the Huffington Post.
Government transparency is vital to a free and well-functioning democracy, and it is particularly so in the area of national security. History shows that national security policies carry a heightened risk of intrusions into individual rights and liberties, making it all the more important that the people are kept informed of their government's actions. Moreover, because these policies may help protect us from catastrophic attack, it is critical that they we get them right. Policies developed in secret—without the benefit of public scrutiny, debate, and input—are invariably less effective.
To be sure, national security policies implicate some information that properly should be classified and kept secret. The careful classification of information that could endanger our national security if released is a key part of keeping the country safe. But experts agree that far too much information is classified, and too much non-classified information is swept into the ambit of secrecy—to the point that entire policies have been improperly withheld from public and even from Congress.
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Tags: Justice, Liberty & National Security, Checks & Balances, Detainee Policy, Privacy & Profiling
By Ari Melber – 04/29/09
Cross-posted from the ACS Blog.
President Barack Obama has drawn praise for transparency reforms during his first 100 days in office, but his use of the “state secrets” privilege to squash lawsuits on torture and surveillance is drawing mounting opposition.
On Tuesday, the Ninth Circuit rejected the Justice Department’s attempt to use the state secrets privilege to shut down an ACLU case challenging government rendition. As the Washington Independent reports, the Ninth Circuit reversed a lower court and reinstated a case challenging alleged rendition by CIA contractors (in Mohamed v. Jeppesen Dataplan). The Ninth Circuit held that the government’s secrecy claim was so broad, it would shut down legal oversight and accountability for the entire CIA and its associates:
At base, the government argues here that state secrets form the subject matter of a lawsuit and...require dismissal any time a complaint contains allegations [which themselves have] been classified as secret by a government official. The district court agreed, dismissing the case exclusively because it “involves ‘allegations’ about [secret] conduct by the CIA.”
This sweeping characterization...has no logical limit—it would apply equally to suits by U.S. citizens, not just foreign nationals; and to secret conduct committed on U.S. soil, not just abroad. According to the government’s theory, the Judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.
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Tags: Justice, Liberty & National Security, Checks & Balances, Detainee Policy, Privacy & Profiling
By Liza Goitein – 04/22/09
Cross-posted from the Huffington Post.
Yesterday, President Obama signaled his willingness to consider an independent, non-partisan commission of inquiry like the one proposed last year by the Brennan Center and more recently by Senate Judiciary Committee Chairman Patrick Leahy. While stopping short of endorsing a commission, Obama's comments are a marked departure from his previous lukewarm response to the proposal. This is a welcome change, and one that heralds a potential victory for truth and accountability.
Obama's statements follow the release of Office of Legal Counsel (OLC) memos that erase any question about whether the U.S. adopted and implemented a program of torturing detainees. To be sure, the OLC attorneys did their best to make the techniques they were approving sound reasonable. Their efforts in that regard are more chilling than comforting, however. It is hard not to be disturbed by the detached, professional tone of the memoranda; the casual (and no doubt strategic) interspersing of more innocuous techniques, like grabbing a detainee's collar, with heinous acts like waterboarding; the emphasis on arbitrary limitations, such as an eleven-day limit on sleep deprivation; and the unnerving references to the presence of medical and psychological professionals at interrogation sessions.
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Tags: Justice, Liberty & National Security, Checks & Balances, Detainee Policy, Privacy & Profiling
By Michael Waldman – 03/16/09
Appeared in Newsweek's March 23, 2009 issue.
As they charge through the eventful first 100 days, President Obama and his allies are racking up legislative victories. Soon they will have to win the votes of a new audience: men and women in black robes. As the former constitutional-law professor surely knows, that can be a tough crowd. Here's the core constitutional fact: a progressive president and Congress now face a conservative judiciary, for the first time since 1937. Obama's ambitious agenda, if enacted, must go before federal courts—where judges can rewrite or strike down key provisions. From the TARP bank bailout, to climate change "cap and trade," to health-care reform, new laws could face an array of judicial doctrines recently honed by conservative lawyers. We can't know for sure, and carefully crafted laws usually withstand judicial scrutiny. Still, imagine if Hillarycare had passed in 1994. Does anyone think the Rehnquist Court would not have vivisected those parts it found unpalatable?
In fact, for most American of history, this alignment has been the norm. From the time Thomas Jefferson faced an array of Federalist judges, the unelected third branch has tended to be more conservative, more protective of private property, than the elected branches. ("The Federalists have retired into the judiciary as a stronghold," he moaned.) In the early 20th century, the Supreme Court blocked Progressive Era laws, such as the minimum wage for women and limitations on working hours. It began to strike down key New Deal laws, too, until Franklin Roosevelt threatened to pack the bench by expanding the number of justices. When the court abruptly started to uphold FDR's laws, wags dubbed it "the switch in time that saved nine." The era marked by Chief Justice Earl Warren, when liberal federal judges sometimes raced ahead of the public and political leaders, was something of a fluke that lasted only about two decades.
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Tags: Democracy, Justice, Liberty & National Security, Checks & Balances
By Liza Goitein – 03/06/09
Cross-posted from Huffington Post.
As the idea of creating an independent commission to investigate post-9/11 counter-terrorism policies continues to gain support, opponents of the idea have identified a favorite talking point: that an investigative commission would "criminalize policy differences." Senator Specter dutifully raised this objection at the Judiciary Committee hearing this week. But the real danger here is not that policy differences will be criminalized. In fact, it is the opposite: that unlawful conduct will be chalked up to policy differences and swept under the rug before the American public can even learn the full truth about what happened.
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Tags: Justice, Liberty & National Security, Checks & Balances, Detainee Policy, Privacy & Profiling
By Emily Berman – 03/04/09
The D.C. Circuit granted the Justice Department not one but two extensions to file its opening brief in the House Judiciary Committee's lawsuit to enforce subpoenas against two Bush White House aides.
Former White House counsel Harriet Miers and former White House chief of staff Joshua Bolten, whose brief originally was due on Feb. 18, asked for the delays in the hopes that ongoing negotiations (between the House, the administration, and former President George W. Bush) on an out-of-court settlement would make further litigation unnecessary.
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Tags: Justice, Liberty & National Security, Checks & Balances
By Liza Goitein – 02/13/09
Cross-posted from the Huffington Post.
For the past eight years, Democratic members of Congress have been issuing pleas for greater transparency, accountability, and a return to the rule of law. At the same time, the administration has been throwing up a wall of secrecy around the government's policies to ensure de facto immunity from any legal or public reckoning. Against that backdrop, observers of the current political scene may be forgiven if they suffered a sinking sense of déjà vu this past Monday.
The principle of accountability held sway at Georgetown University, where Senator Patrick Leahy lent his dignified voice to the growing chorus both inside and outside government calling for an independent commission to investigate the worst alleged abuses of the past administration. The members of the commission would be drawn from a pool of individuals "universally recognized as fair minded, and without axes to grind." They would be granted subpoena powers, if necessary, and possibly even the authority to confer immunity on witnesses. Their "straightforward mission" would be "to find the truth"—the truth behind the administration's policy of extraordinary rendition, the truth behind the CIA's own interrogation practices, the truth behind the administration's program of warrantless wiretapping.
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Tags: Justice, Liberty & National Security, Checks & Balances, Detainee Policy, Privacy & Profiling
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