The Justice Department has finally taken decisive action in the mounting legal challenges to the President Bush’s domestic spying program. But there’s only one problem: It has acted to defend illegal spying, not stop it.
On June 15, the Justice Department filed a lawsuit to block the New Jersey Attorney General from demanding that telephone companies answer whether they have broken the law by providing records to the National Security Agency (NSA). On behalf of the Bush Administration, government attorneys argued that New Jersey cannot investigate whether the phone companies broke the law, because this could compromise national security.
Government attorneys used the same argument in May to demand a federal court drop a case challenging warrantless domestic wiretapping–without even hearing the evidence. They declared that the court case itself would compromise national security. The Bush Administration demanded the judge throw out the case without any more review.
How are these unilateral demands even possible in American courts?
In both instances, the administration is using a sweeping doctrine, the State Secrets Privilege, to dismiss cases that could challenge government misconduct. Under this privilege, established by the Supreme Court in 1953, the executive branch can halt cases that might expose government secrets. When the administration invokes state secrets, even judges are not allowed to assess the information and decide if the claim is valid. Instead, the Justice Department simply declares that continuing the case, even in a closed setting, would jeopardize national security. After that, a judge is simply supposed to throw the case out of court. So instead of the court checking the executive and keeping it within its constitutional boundaries, the President becomes the only informed judge of his conduct.
The case that the administration tried to preempt with state secrets last month is CCR v Bush, which I helped file with the Center for Constitutional Rights on behalf of Americans who were targeted for warrantless electronic spying. But the case does not currently include any major secrets. In fact, the evidence cited in our briefs is not from secret government documents, but from the public record. (For example, the briefs quote public statements by President Bush and then-NSA Chief Michael V. Hayden). So it is hard to accept the Bush Administration’s assertion that discussing this public information in court would expose government secrets.
This case is important because it is one of the last resorts to challenging domestic surveillance. The suit challenges illegal surveillance of attorneys’ conversations and e-mails, which violates federal law, the Constitution and due process. If the administration can spy on Americans without warrants and judicial review, there will be no check to prevent the Executive Branch from spying on anyone it chooses, including political opponents challenging its power, journalists scrutinizing its actions, or attorneys challenging its conduct.
Yet the administration’s state secrets claims go far beyond spying. Many of the fundamental legal challenges to President Bush’s conduct over the past five years have been met with the trump card of state secrets. As the New York Times recently reported, President Bush is invoking it “more frequently” and more broadly than any other administration in history; scholars say the process has “short-circuited judicial scrutiny and public debate of some central controversies of the post-9/11 era.”