Obama Administration Invokes State Secrets To Kill Lawsuit Over Unlawful Surveillance Program

225px-official_portrait_of_barack_obama225px-george-w-bushIn yet another break with its campaign promise to fight to restore civil liberties and privacy, the Obama Administration has made a breathtaking claim of state secrets to block a public interest organization from suing the government for illegal surveillance. There is not a scintilla of difference in the legal position of President Obama and the position of President Bush in trying to quash any effort to challenge unlawful surveillance by the government. It appears the “yes we can” means “yes we can do most anything that we want” when it comes to unlawful programs. I discussed this story on this segment of MSNBC Countdown.

The Administration is moving to kill a lawsuit brought by the Electronic Frontier Foundation on behalf of AT&T customers who were unlawfully intercepted by the government. Not only is the Administration making an extreme argument under the military and state secrets doctrine but it is claimed that citizens cannot sue, even if the government engages in unlawful surveillance, under the Patriot Act. Due to changes put through with Democratic support, the statute is being used to block any lawsuit unless the citizens can show that there was “willful disclosure’” of the communications by the government.

Congress passed the new language last summer with the support of then Sen. Obama in a complete caving into the powerful telecommunications lobby. Chief U.S. District Judge Vaughn Walker has been addressing the impact of this law in dozens of public interest lawsuits. At the same time, the Obama administration is invoking state secrets to try to prevent the review of evidence in the case of the Al-Haramain Islamic Foundation. The Administration has even threatened to remove a document from the Court after Judge Walker ruled against it — a position that exceeds even the Bush Administration.

For the government filing, click here.

For the full story, click here.

54 thoughts on “Obama Administration Invokes State Secrets To Kill Lawsuit Over Unlawful Surveillance Program

  1. Your legal system is busted. For the system cannot protect the people who are essentially the indentured slaves. the slaves don’t have any rights under the system of oligopoly. the people that own you do what they believe is in your good interest; after their interests are served.
    If the executive branch of the government had to have state secret immunity, they had to have told the congress and made a case for it as it is required practice. They did not and that means they don’t have the right for state secret immunity. comprendi ?

  2. I was wondering if someone could explain something to me. A couple of sources I’ve seen on this have referred to “willful disclosure” as opposed to “intentional disclosure” and suggested the former is a higher standard than the latter, i.e., would be harder for the plaintiffs to show.

    Is there a difference, and if so, could someone explain to me what it is?

    It also appears to me, as best as I understand it, that any such “willful disclosure” would have to be other than what is authorized – which, if I’m right, would mean the government could do more than just gather information, it could pass on such illegally-gathered information to other law enforcement agencies, including foreign ones, without committing such “willful disclosure” as would allow for a suit.

  3. Hey why don’t we all get AT&T and then that way the govt can listen to all of our conversations at once.

  4. The Electronic Frontier is a party to the lawsuit against the DOJ. Here is their reading of the govt.’s position. They plan to go to the mat fighting this one:

    “Sad as that is, it’s the Department Of Justice’s second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

    This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

    Previously, the Bush Administration has argued that the U.S. possesses “sovereign immunity” from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government’s ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.”
    http://www.eff.org/deeplinks/2009/04/obama-doj-worse-than-bush

  5. I hope the court will slap down this divine right of kings. I think David, you are correct to point out JT’s statement about our rights being frittered away. In many ways the fourth amendment protects some of the most important rights enshrined in our Constitution. Withdraw of it’s protections makes the right to free speech vunerable to govt. punishment. There’s a lot the govt. can do to a person to let them know they better not say anything they’re not supposed to say. Making it legal to spy on those who might object to something the govt. is doing is an excellent tool for ending free speech and free association. Knowing that at any time the govt. may seize your property and your person is frightening. It does send a chill to criticism of the govt. It shuts down reporting and it shuts up the people. That is one reason why this law should be ruled illegal immediately. Others, have been pointed out ably above.

  6. Mike,

    “But now I am curious as to why state constitutional protections have not been alleged by the ACLU in the Jewel case.”

    I think the answer is more psychological and sociological than legal. Force of habit if you will.

    As Chief Judge Kaye put it:

    (in media res)

    “At the same time-and expressing dissatisfaction with many state courts’ discharge of their “front-line responsibility for the enforcement of constitutional rights”[26]-the Supreme Court began actively widening and raising the federal floor. Individual rights became increasingly federalized. The broadening application of provisions of the federal Bill of Rights to the states “made U.S. Supreme Court law the touchstone for much of the nation’s constitutional decision making, concerning individual rights.[27] These are the years in which many of us received our professional education and training. As lawyers, we have acquired an easy familiarity with the federal Bill of Rights and have grown accustomed to controlling federal precedents in the adjudication of constitutional rights of the citizens of this State, even though this is in fact a relatively new development in our nation’s history.

    In our dual system, the Supreme Court’s growing dominance necessarily affected constitutional law as applied by state courts. While state courts have at all times been important contributors to the body of constitutional law, they too became involved in the application of federal law. So long as the federal floor, or national minimum, was satisfied, state courts could have imposed ceilings in the form of greater rights applicable within their own borders under their own constitutions, and these judgments would then have been conclusive, beyond Supreme Court review.[28] BUT AS A PRACTICAL MATTER, the federal guarantees as then interpreted by the Supreme Court in general not only satisfied but often exceeded their view of the requirements of comparable state provisions.”

    http://www.courts.state.ny.us/history/elecbook/kaye_cardozo/pg1.htm

  7. Thank you Rafflaw and Mike Appleton…!!!

    Exactly my point back on February 9 when I posted with respect to existing cases and the known long standing tradition at DOJ not to interfere with ongoing prosecutions. It’s already in the hands of the judiciary.

    There are also actions Congress has taken which need to be undone as well. It’s not possible to proceed as if these things do not exist. We are not dealing with a clean slate, as it were.

  8. Thank you for speaking out about these important, underreported issues. The lack of media attention to what you accurately described as a “breathtaking claim” reminds me of the frog being boiled slowly or or the REM song: “it’s the end of the world as we know it… and I feel fine.”

    Your comment that “what he’s frittering away are the rights we have as citizens” sums up the stakes nicely, but the fact that so few people seem concerned about this extremist position brings to mind Franklin’s remark that “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither.”

    (By the way, Greenwald links to a youtube of your Countdown comments last night which is linked at my sig.)

  9. Bob, good points and thanks for the John Dean cite. I feel a bit more hopeful. But now I am curious as to why state constitutional protections have not been alleged by the ACLU in the Jewel case.

  10. Mike A,

    One more thing. You’re forgetting the fact that States set the ceiling on rights while the Fed sets the floor.

    NYS Constitution:

    [Security against unreasonable searches, seizures and interceptions]

    §12. The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (New. Adopted by Constitutional Convention of 1938 and approved by vote of the people November 8, 1938.)

    Care to tell me how congress was given the power to decrease the rights protected within a State Constitution?

  11. I have read the motion and memorandum of law (but not the cited cases). The government’s position may well be correct with respect to its interpretation of the statutory language. If that is the case, it means that Congress has adopted a statutory scheme which accomplishes the following:
    1. The government can engage in whatever form of surveillance it wishes against anyone for any purpose without hindrance.
    2. A claim for relief is available only if the content of the surveillance is unlawfully disclosed, whatever that means.
    3. The relief is available only against the individual(s) making the disclosure.
    4. The pleadings alleging the claim must be fact specific.
    5. Evidence to support the claim is not subject to disclosure if state secrets are involved.
    In essence, Congress has created a situation in which the government can violate constitutional rights at will and avoid any responsibility for its actions through invoking what is actually a civil version of the privilege against self-incrimination. It might just as well have passed a statute providing that if I violate your constitutional rights and you find out about it, I am authorized to kill you. I predict that the plaintiffs will lose unless the statutory scheme is found to be unconstitutional.

  12. When I met Barack Obama at a fundraising event in D.C. during the campaign, I thanked him for giving back what was taken from us in 1963. That sentiment is dead as of Tuesday, April 7th, after learning of Obama’s effort to quash any challenge to the unlawful surveillance by the government.

    Obama has destroyed my belief in his promise to take back our country, his promise of ensuring full accountability with regard to the demeaning and humiliating practices of the Bush administration, and his promise of “Yes, We Can.” First, I believed that even though he selected Geithner and Summers as his financial gurus, Obama was going to surprise us with his “secret goal” and do the right thing by the people. Not so. Yet, I still believed Obama would never let the Bush administration get away with destroying the people’s basic rights under the Constitution and robbing us of our dignity day-in and day-out for eight years. Not so. Instead of giving us the “Hope” he promised, Obama is proving that we were just pawns to be used for his ultimate glory–becoming President of the United States. Obama is proving to be as honest and compassionate as George W. Bush. I could not be more disappointed, disillusioned, and depressed than I am with this pretty young man who is slowly being unmasked and is looking more and more like W. God help us.

  13. Oh, good, I am glad that I reread your post. I first read it on my phone and had LSU confused with ACLU thank god.

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