(Secret) change you'll still have to hope for

Perhaps summoning the ghosts of Bush administration officials past in celebration of Halloween, the Obama administration's Justice Department on Friday once again invoked the state secrets privilege. Government lawyers argued that allowing plaintiffs in the case of Shubert v. United States to raise their allegations of civil liberties violations in the courts created to adjudicate such claims would reveal dangerously sensitive information, and so asked that the court toss the case without considering its merits. The move cements the policy continuity between the last president and the current one when it comes to claiming that some government wrongs can never be remedied for fear of exposing information the government itself deems sensitive.

The case of Shubert v. United States concerns allegations that the U.S.government has engaged in a warrantless surveillance dragnet in the wake of the terrorist attacks of 2001. The surveillance is said to illegally ensnare millions of Americans engaged in telephone and email communications originating in or destined for the United States. The United States government, first under President George W. Bush, and now under President Barack Obama, has insisted that, whether or not the plaintiff's assertions are correct, allowing the case to proceed would jeopardize national security. Among the points of information government attorneys explicitly want to conceal is if such surveillance is ongoing.

In an October 30 statement, Attorney General Eric Holder referred to policies and procedures adopted last month that were supposedly intended to increase government transparency, and claimed that even in light of the new rules, the state secrets privilege was justified.

The Department of Justice asserted the state secrets privilege in a case today to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country.  I authorized this significant step following a careful and thorough review process, and I did so only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.

Responding to skepticism over claims that the government should be allowed to determine when claims against it are too sensitive to be allowed to proceed, Holder added:

We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power.  Moreover, we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.

Specifically, in documents (PDF) filed with the United States District Court for the Northern District of California, San Francisco Division, government lawyers argued:

[S]ummary judgment should be entered for the United States and the Government Defendants sued in their official capacity with respect to all of plaintiffs’ claims against all defendants (including any statutory claim against the Government Defendants not otherwise dismissed for lack of jurisdiction and any claim against any personal capacity defendant) on the ground that information necessary to litigate all of plaintiffs’ claims against all defendants is properly subject to, and excluded from use in this case by, the state secrets privilege and related statutory privileges raised by the Director of National Intelligence and the Director of the National Security Agency.

In April, the Electronic Frontier Foundation, which has been active in litigation against the federal government over warrantless wiretapping, asserted that the Obama administration's claims of state secrets privilege are actually farther-reaching than those of the last administration. According to Tim Jones, EFF's Activism and Technology Manager, "the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes."

In fact, the Obama administration has continued to assert that what matters is the government's own assessment that there is a reasonable danger that military or intelligence information will be divulged -- it's irrelevant whether the court agrees. The recent filing continues, "once the privilege is properly invoked and the court is satisfied as to the danger of divulging state secrets, the privilege is absolute and cannot be overcome by even the most compelling need in the litigation."

If granted, a state secrets privilege of such scope could effectively put even the most heinous offenses committed by the state beyond the reach of adjudication by the courts.