As blogged about on Daily Kos yesterday, U.S. District Judge Vaughn Walker declined to penalize Justice Department lawyers for flouting his orders in the Al-Haramain case, the only viable challlenge to the Bush administration's warrantless wiretapping program, in which the Obama administration is siding with Bush predecessors. The government has tried to get the case dismissed based on the dubious "state secrets privilege." A possible solution is to pass the State Secerets Protection Act, H.R. 984 and S. 417, which the Senate Judiciary will markup at 10:00am and which the House Judiciary's Constitution, Civil Rights, and Civil Liberties Subcommittee will be holding a hearing this afternoon that I will be analyzing. UPDATE: the Senate Judiciary Committee markup of S. 417 was held over until June 11th and my hearing analysis is below.
One of the most viable challenges--one of the ONLY viable challenges--to the Bush Administration's warrantless wiretapping program is a lawsuit brought in federal court in Oregon by an Islamic charity, the Al-Haramain Islamic Foundation, which alleges that it was subject to secret surveillance. In this case, unlike in the other National Security Agency (NSA) cases, the plaintiffs can demonstrate that the government actually listened to their conversations . . . because the government inadvertently sent Al-Haramain an NSA log of intercepted calls.
Doh!
Obama's campaign rhetoric was pro-transparency, criticizing the Bush administration because it had ignored public disclosure rules and invoked the state-secrets privilege too often. But now Obama has adopted the same expansive arguments that Bush used to cloak one of the most controversial programs of the Bush era: warrantless wiretapping.
Holder's Justice Department has cravenly followed in Bush's footsteps claiming the state-secrets privilege, and has gone even further down this dubious path. The Obama administration's position is not just similar, it's identical, and arguably worse. The Obama Justice Department not only sought to dismiss the lawsuit by arguing that it implicated "state secrets," but proposed that government lawyers might take classified documents from the court's custody to keep the charity's representatives from reviewing them.
While there are legitimate reasons for invoking the state-secrets privilege (e.g., to keep from disclosing government sources and methods of intelligence gathering), this is not one of them. We already know what happened. And, our government should not be in the habit of crying "state secrets" to cover illegal or embarrassing activity.
Judge Walker's actions yesterday were baby-slicing at its best: Even though he didn't penalize the Department of Justice for flouting his orders, he didn't give the Department what it wanted either by denying new Justice Department attempts to appeal his prior rulings, which have been critical of President Obama's approach to protecting state secrets.
Judge Walker directed attorneys for both sides to prepare court filings this summer about the legality of the government's warrantless wiretapping program and the scope of Executive Branch authority.
Criticism of the state secrets argument has gained traction among congressional Democrats. Today, the House Judiciary Committee will hold a hearing examining ways to protect classified information without crippling whistleblowers' ability to sue. The State Secrets Proection Act (H.R. 984) would insert some much-needed judicial review when the government tries to assert the State Secrets privilege. My contemporaneous analysis is below.
The Senate Judiciary Committee is slated to markup a similar bill (S. 417) at 10:00 am EST. UPDATE: The markup of S. 417 was held over until June 11, 2009.
QUICK ANALYSIS of the House Judiciary Consitution Subcommittee hearing on the State Secrets Protection Act:
Luckily Mr. Grossman from the Heritage Foundation was alone in his assertion that the Executive Branch alone has the ability to determine what is appropriately deemed a state secret. The other witnesses, and most of the members, realized that Congress has the power to regulate evidentiary rules, including state secrets. As some of the witnesses, particularly Judge Wald, so pertinently noted: Congress should give judges the clarity and guidance to oversee the state secrets privilege.
Enacting the State Secrets Protection Act would allow judges to make a clear determination on state secrets claims in cases like al-Haramain, and then move such cases expeditiously forward to a ruling on the merits. While the government would be allowed to assert the state secrets privilege in appropriate situations (where disclosure "would be reasonably likely to cause significant harm to the national defense or diplomatic relations of the US"), it would be prevented from using state secrets as a smoke-screen to cover illegal, inappropriate, or embarrassing behavior. Chairman Nadler and the co-sponsors of the State Secrets Protection Act of 2009 commendably recognize that we should not be a nation with an unchecked executive, and it’s time to put formal checks and balances into the state secrets privilege doctrine.
LIVE BLOGGING from the House Judiciary Constitution Subcommittee hearing:
2:09 - Chairman Nadler, lead sponsor of the State Secrets Protection Act calls state secrets "the most important issue this committee will take up."
2:11 - Chairman Nadler notes that the government should not be permitted to assert state secrets at the pleading stages and avoid liability - "rights without remedies are illusory"
2:14 - Chairman Nadler quotes the 9th Circuit in Jeppesen, "The Executive cannot be its own judge."
2:15 - Chairman Nadler is very disappointed DOJ declined to send someone to this hearing but encouraged that DOJ is working to review this privilege.
2:20 - Ranking Member Sensenbrenner says state secrets is cruicial for national security and the Obama Administration has taken the same position as the Bush Administration. He notes Obama, Biden and Clinton have stopped commenting on this bill even though Biden and Clinton were supporters of the Senate version last Congress, concluding, "The President is running from this bill and so should we."
2:25 - Chairman of the full Judiciary Committee John Conyers says "the President is running from a lot of things, this is one of them." He notes the President has assured us he will deal with Congress and the Courts as co-equal branches of government, but we can't sit idly by, if we're co-equal we need to assert it. And, declares that it is unacceptable DOJ did not come to this meeting.
2:30 - Chairman Nadler is swearing in the 4 witnesses:
Hon. Patricia M. Wald
Retired Chief Judge
U.S. Court of Appeals for the District of Columbia
Washington, DC
Hon. Asa Hutchinson
Senior Partner
Asa Hutchinson Law Group
Washington, DC
Andrew Grossman
Senior Partner
The Heritage Foundation
Washington, DC
Ben Wizner
National Security Project Staff Attorney
American Civil Liberties Union
Washington, DC
2:40 - Judge Wald is supportive of the bill and notes:
that even the case establishing the state secret privilege: U.S. v. Reynolds, states that a judge must decide whether the privilege applies or not,
that the State Secrets Protection Act does NOT stop the government from raising the state secrets privilege and does NOT allow a court to require disclosure of what has been appropriately deemed a state secret,
that this bill enables judges to minimize the number of cases that are dismissed due to state secrets,
that to her, in Jeppesen, the court did a good thing in denying the government the ability to have a cased dismissed simply because the "subject matter" is sensitive,
that this legislation allows cases to go forward if at all possible and where there is a legitimate assertion of state secrets, allows for summaries, substitutions, etc,
that, importantly, the government has the burden of proving the nature of the harm that will result from disclosing what the government asserts is a state secret,
and that the bill requires the judge to actually look at the evidence that is asserted as a state secret and not make a ruling on whether something is a state secret based on only the government’s affidavit.
2:50 – Mr. Hutchinson is generally supportive of the bill and notes:
that assertions of state secrets from the Executive Branch should not be immune to checks and balances,
that if the Executive can avoid liability by asserting state secrets it will be tempted to do so,
that the courts have proven themselves capable of protecting classified information at the highest level: Classified Information Procedures Act, FISA, FOIA requests,
that all the procedures are set up for dealing with national security information, and
that even though state secrets is a historic doctrine, judges don’t have a clear standard for evaluating the state secrets privilege, and with this bill Congress can provide the guidance and clarity in terms of what is the right approach to independent review of assertions of the state secrets privilege.
At Mr. Hutchinson's request the Constitution Project’s Liberty and Security report titled "Reforming the State Secrets Privilege" was added to the record.
2:54 – Mr. Grossman opposes the bill and states
that there’s no evidence the state secrets has been abused or misused,
(Just a side note here from me: in the very case establishing the privilege, U.S. v. Reynolds, the information the government claimed was a "state secret" did not contain national security information, but contained evidence of the government’s negligence. See 345 US 1 (1953)),
that the State Secrets Protection Act is unconstitutional because the power to keep secrets belongs to the executive,
that there is no justification for this legislation and past the narrow interests of those that would use the courts to make policy.
Mr. Wizner is supportive of the legislation and notes:
that state secrets has morphed from an evidentiary rule to a tool the government is using to avoid liability for constitutional violations,
that in Jeppesen, the 9th Circuit held that the government’s assertion that the entire topic of the lawsuit was a state secret was too broad, and
that after the 9th Circuit ruling, President Obama said he thought the state secrets privilege should be revised to give judges more tools.
3:00: Questioning has started: Judge Wald agrees with Chairman Nadler that the judge should make the assessment and that she likes the bill as is.
3:06: Ranking Member Sensenbrenner claims last year Judge Wald said a government assertion of state secrets should be given "substantial weight." Judge Wald notes that the "substantial weight" standard is from FOIA exemption 1(not even the statute, in the conference report), and she interpreted it not to mean some kind of blind, blanket deference to the government's claims. Judge Wald wants to point out that the Jeppesen case specifically points out that separate standards for FOIA exemption 1 and state secrets might be appropriate.
3:13: Chairman Conyers wants to know why DOJ isn't at the hearing? Grossman replies "where you stand depends on where you sit," but admits he's speculating. Hutchinson says the Attorney General's absence is only more reason for Congress to act.
3:20: Grossman is arguing about executive power: Grossman claims that while no power is absolute, the Executive must have discretion to determine what is secret, but others note that Congress does have the authority to regulate evidence.
3:31: Rep. Delahunt thinks over-classification is also a key problem: "secrecy is the hallmark of totalitarianism and transparency is an aspect of democracy."
3:34: Rep. Franks notes that the Obama Administration has left in place techiniques Obama decried during the campaign. He notes that the Obama Administration and Bush Administration have many of the same positions - including state secrets.
3:40: Chairman Nadler notes the hearing record will be open for 5 days and adjourns the hearing