05/16/2006 12:55 pm ET | Updated May 25, 2011

Spying Nuclear Option & Specter's New Deal

The Bush Administration is using the nuclear option -- in the battle to squelch legal challenges to domestic spying.

One of the key cases exposing and challenging NSA spying was not filed against the Bush Administration, but against AT&T. The Electronic Frontier Foundation (EFF) filed it long before USA Today reported that several telephone companies are helping the NSA review tens of millions of Americans' phone records. EFF attorneys are challenging the actions of only a private telephone company, but the Bush Administration has asked the court for permission to enter the case. Then last Friday, the government seized on the nuclear option, arguing the case must be dismissed on the state secrets privilege. (For an explanation of that concept and its shortcomings, see this post.)

In its most basic terms, invoking the state secrets privilege means the government submits an affidavit from a department head saying that any court proceedings would spill secrets threatening national security, so the case should be dismissed only on those grounds. When faced with sensitive evidence, typically a court can close the courtroom, place briefs under seal, and make the other side's attorneys promise not to divulge the information.

But the state secrets privilege says that's not good enough. For the most sensitive secrets, the case must simply be dismissed outright. Even the judge cannot be trusted to hear them. Supposedly, they are so sensitive that the judge can't even evaluate the level of confidentiality required; the judge is required to rely on an executive affidavit. Or so the government's argument goes. (Of course, this leaves the Bush Administration as the only arbiter of confidentiality, and recent cases reveal that it has used the state secrets privilege to fight cases cases from whistleblowers.)

For the administration's defenders, this marks an analytic leap from "the program is absolutely legal" to "we can neither confirm nor deny anything about the program's legality."

Since this may sound counterintuitive to logical observers, let's review:

1. The government is demanding that a lawsuit against a private company accused of violating federal law must be dismissed without more inquiry because the government says so.
2. The lawsuit against the company includes corporate documents that are said to include enough proof of the company's illegal conduct that the case could be won now.
3. The company is facing potentially millions of dollars in liability to American consumers, but the government is demanding that the court does not even consider that part of the case.
4. The government is using the state secrets privilege to prevent judicial review of a program that it claims is legal, and thus should be able to withstand judicial review.

And this wasn't the only government attempt to cover its tracks filed on Friday. In another NSA Program challenge in Oregon, the government resorted to an ex parte filing--that is, it submitted a brief for the judge's eyes only, not to be seen (or responded to) by the other side's lawyers.

The case alleges that the NSA spied on domestic communications between a Muslim charity in Oregon and its lawyers in Washington, DC. This is a shocking claim: Not only is the NSA involved in warrantless domestic surveillance, but it is not even following the constitutional rules prohibiting eavesdropping on privileged communications between attorneys and clients. In this case, the attorneys imply that they have proof from a document accidentally released by the government in from other proceedings, (when the Treasury Department designated the charity a terrorist organization). That document was filed under seal by the plaintiffs, and the government desperately wants to keep it hidden from public view.

Where was this secret brief filed?

In some safe room in the federal courthouse?

No. It wasn't even filed with the court.

The Department of Justice explains that the brief and its classified exhibits are:

"...currently stored in a proper secure location by the Department of Justice and are available for review by the Court upon request." (emphasis added.)

The reference to review "by request" is quite remarkable, because it opens the possibility to further executive encroachment on independent judicial review. Let me explain why by analogy: Even with the advent of electronic filing systems, where briefs are all filed on disk or the web, courts are reluctant to accept briefs containing internet hyperlinks, partly to prevent outsiders from using the links to monitor the judges. Basically the concern is if a judge clicks on a link in a brief, that may tip off one of the parties to what the judge is looking at, working on, or thinking about. It could also show people outside the courthouse that a decision may be close at hand. The government's insistence that the judge in the Oregon case ask permission to visit the secret brief in its secure home and read it is similar in some ways. It could effectively allow the DOJ attorneys in Washington to follow the judge's reading habits. As if he couldn't be trusted to drop in on his own.

The government has apparently threatened to invoke the state secrets privilege in that case if plaintiffs do not self-limit their discovery (pretrial document) requests. Thusfar it's only a threat. But that's basically how any privilege works--like insurance, it gives the person covered an extra incentive to misbehave. Why respond in good faith to legitimate discovery requests when you have the nuclear option and the other side doesn't?

And that is the problem with the Bush Administration's increasing invocation of the state secrets privilege. As these serious challenges to domestic spying gain steam in the courts and support from Congress, the Bush Administration is striking back by trying to preempt real judicial review with state secrets and pressure Sen. Arlen Specter to pass new legislation ratifying warrantless domestic spying.

That is the news in The Hill today, and it reveals how brazen the Republican apologists for spying are being, even in the wake of the public outcry over the NSA's massive phone record surveillance.


Here is an excerpt from the article, "Specter Strikes NSA Deal":

Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.

And to make a long, scary story a short, scary story, The Hill quotes an expert who predicts that if new legislation does not force real judicial review, the Bush Administration could invoke state-secrets privilege and deny Americans "access to information" about these issues.

If the story is accurate, Sen. Specter is capitulating to a lawless administration on some of the most crucial principles of American democracy - independent judicial review and congressional oversight. And that's not a secret, at least not yet. But at this rate of expanding surveillance, it may get harder to talk about anything contrary to the government's wishes.