November 2, 2009 | By Kevin Bankston

As Congress Considers State Secrets Reform, Obama Admin Tries to Shut Down Yet Another Warrantless Wiretapping Lawsuit

In a Court filing late Friday night, the Obama Administration attempted to dress up in new clothes its embrace of one of the worst Bush Administration positions — that courts cannot be allowed to review the National Security Agency's massive, well-documented program of warrantless surveillance. In doing so it demonstrated that it will not willingly set limits on its own power and reinforced the need for Congress to step in and reform the so-called 'state secrets' privilege. The House Judiciary Committee will be taking the first step toward such reform when it begins to consider the State Secret Protection Act of 2009 (HR 984) this Wednesday, so please visit our action center now to voice your support!

We Hate to Say We Told You So

EFF was skeptical when the Obama Administration announced in September its new policy on when the Executive Branch would assert the state secrets privilege in litigation. We argued that the Administration's promise of self-restraint was no replacement for Congressional reform of the oft-abused privilege, considering how the new administration had already embraced the Bush Administration's position on warrantless wiretapping and secrecy by invoking the state secrets privilege in an attempt to have EFF's case against the government, Jewel v. NSA, tossed out of court. Based on that experience, we feared that the purported change in policy would result in no change at all when it came to lawsuits over the NSA spying program.

The Shubert Filing: New State Secrets Policy Results in No Change

Our fears proved to be well-founded on last Friday night, when the government moved to dismiss yet another warrantless wiretapping lawsuit based on state secrecy. That lawsuit, Shubert v. Obama, was originally filed back in 2006 as Shubert v. Bush and had been on hold while courts grappled with the state secrets issue in other warrantless wiretapping cases such as EFF's Hepting v. AT&T. The case was recently put on track by the federal district court that is handling all of the wiretapping lawsuits, thus sparking the government's motion to dismiss.

That motion included the first assertion of the state secrets privilege under the Administration's "new" state secrets policy (motion is here, with attached exhibits here, here and here). Sadly, the motion amounted to a rehashing of the exact same state secrecy arguments originated by the Bush Administration and pressed by the Obama Administration in Jewel: that any attempt to have the courts rule on the legality of the NSA program would harm national security and that the courts should be blocked from considering whether the surveillance is legal or constitutional.

What a Difference a Year Makes for Obama and Holder

The government's position is in stark contrast to candidate Obama's criticism of Bush-era abuse of the state secrets privilege. For example, in June, 2008, now Attorney General Holder said in a speech that:

"Steps taken in the aftermath of 9/11 were both excessive and unlawful. Our government . . . approved secret electronic surveillance of American citizens . . . These steps were wrong when they were initiated and they are wrong today."

Similarly, the Obama-Biden campaign website includes state secrets as part of "The Problem" that President Obama would address, complaining that the Bush Administration "invoked a legal tool known as the 'state secrets' privilege more than any other previous administration to get cases thrown out of court."

Attorney General Eric Holder took the rare step of putting out a press release to defend the Friday filing, which was immediately picked up by the press. Luckily, we were standing by to express our disappointment and inject a dose of reality into the Justice Department's spin (see our quotes in stories by the Associated Press, Bloomberg, CNN, and ABC). As one EFF representative explained to AP, "The Obama administration has essentially adopted the position of the Bush administration in these cases, even though candidate Obama was incredibly critical of both the warrantless wiretapping program and the Bush administration's abuse of the state secrets privilege." EFF Legal Director Cindy Cohn similarly pointed out the Obama Administration's hypocrisy in Bloomberg's coverage: considering that Obama "campaigned for a return to the rule of law," "it's disappointing...to have them turn around and say that courts can't even look at these cases."

Congressional Reform of State Secrets Privilege is Needed

Holder's defensiveness probably stemmed from the fact that this very week, on Wednesday, the influential House Judiciary Committee will be considering long-delayed legislation to rein in the state secrets privilege. That bill, the State Secret Protection Act (HR 984), was introduced by Representative Nadler, the chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties who invited EFF to provide testimony in favor of state secrets reform last year, and is co-sponsored by twenty-three other Representatives.

Representative Nadler's bill aims to prevent the government from doing exactly what the Obama Administration is now trying to do in the Shubert case: force the dismissal of lawsuits at the outset based on blanket claims of state secrecy. The bill would, instead, provide clear and sensible procedures for courts to securely review evidence that the government claims is secret, and prevent cases from being dismissed based on state secrecy until plaintiffs have had an opportunity to discover all non-privileged evidence. In other words, the bill would do what the Executive Branch has been unwilling to do on its own, regardless of its new state secrets policy: fairly balance national security concerns with the right of plaintiffs to have their day in court.

Considering the Obama Administration's continuing insistence that the state secrets privilege amounts to an immunity for government law-breaking, this much-needed reform legislation is going to face an uphill battle when it comes before the House Judiciary Committee on Wednesday. So, we need your help today: please visit our action center now to find out if your Representative is on the Committee and take action to let them know that you support the State Secret Protection Act. Because as the Obama Administration's filing in the Shubert case makes clear, no president — neither Bush, nor Obama, nor anyone who comes after — can be trusted to exercise self-restraint when it comes to state secrecy.


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