Is David Addington moonlighting at Obama’s Department of Justice?
The Obama Administration recently made the understatement of the year: It would be a “significant step” to dismiss claims that the U.S. Government engaged in an illegal dragnet wiretapping program in the wake of September 11th. The rationale offered? Not only does the state secrets doctrine (“Doctrine”) provide an unqualified immunity to any wiretapping program the Government might have engaged in, the law has always prioritized “the greater public good” over the protection of private claims (which, dear friends, is a telling euphemism for individual rights). Did you get that? Individual rights take a backseat whenever the government thinks national security so requires. This disconcerting and radical claim was put forward in the Government’s motion to dismiss and motion for summary judgment in Jewel v. NSA.
Obama’s Justice Department, of course, has made this argument before. In Mohammed v. Jeppesen DataPlan, Binyam Mohammed claimed that the Government hired Jeppesen DataPlan to deliver him to various exotic foreign locales so he could be tortured. When Mohammed sued, the Government argued that the case couldn’t be litigated on account of the Doctrine. Consider the idea underlying the Government’s arguments in both the Mohammed and Jewel cases: Any evidence indicating that the U.S. Government is, has been, or could be engaged in illegal activities for the purpose of protecting national security simply cannot be heard by any court. Evidence of this kind can’t be admitted even if a judge reviews it in camera (behind closed doors) to determine whether its disclosure would threaten national security.
As I have argued in connection with the Mohammed case, this position is extremely dangerous. The Justice Department essentially wants the federal courts to apply an immunity to a case where the palpable costs to personal liberty and the rule of law are clear but the threat to international security is murky at best. And, it is high irony indeed that one of the authorities cited by the Government in its brief actually undermines rather than supports its case:
- “Judicial intuition . . . is no substitute for documented risks and threats posed by the by the potential disclosure of national security information.” Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007).
If judges are to rely on documented risks, rather than their own intuition, then they simply must have some kind of role in reviewing assertions of the Doctrine. Of course, no sane person would argue that judges should admit evidence that could imperil national security. Where documented risks show that intelligence gathering techniques and counterintelligence resources could be placed at risk by disclosing certain evidence, it makes sense to respect the Government’s invocation of the Doctrine. But as a number of critics on the right and the left have pointed out – including Orin Kerr, Bruce Fein, and Glenn Greenwald – in Jewel the Doctrine appears to have been asserted to protect the Government from legal liability and embarrassment, not to guard national security. Of course, the twin aims of protecting national security and preventing national embarrassment are not mutually exclusive. But a legitimate aim should never be invoked as a pretext for a morally dubious one.
If the states secret argument isn’t particularly compelling, might there be another arrow in the Government’s quiver? Indeed there is. Because the Government is the defendant, not a private company as in Jeppesen DataPlan, it has asserted sovereign immunity as another line of defense in the Jewel case. Think of sovereign immunity as the beefy and bombastic cousin of the Doctrine: while the latter prevents certain issues from being litigated on national security grounds, the former precludes certain parties (i.e., the Government) from being sued. Without a waiver of sovereign immunity, the suit must evanesce.
So Obama’s Justice Department is claiming that Jewel cannot go forward because there has been no clear waiver of sovereign immunity. Is this correct? On the one hand, the Supreme Court always sings the same tune about this lofty doctrine. This expansive immunity can only be overcome if there’s an explicit waiver for a particular kind of lawsuit. If you can imagine a choir of constitutional lawyers, decked out in snazzy designer spectacles and ill-fitting suits, all chanting “the court should strictly construe any purported waiver in favor of the sovereign,” you’ll get a sense of just how strong this jurisprudential tradition is. On the other hand, § 2712 of Title 18 of the United States Code is quite explicit:
- “Any person who is aggrieved by any willful violation [of the Stored Communications Act] or [chapter 119 of the Wiretap Act] or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 . . . may commence an action in the United States District Court against the United States to recover money damages.”
Persons, tick. Willful violation on the part of the Government, tick. (Let’s be serious folks, neither the Bush or the Obama Administrations have denied that dragnet surveillance was undertaken after September 11th.) Aggrieved persons, hymm. This is where it gets tricky. If my phone call to a friend in NYC was intercepted and stored by the NSA, which, in turn, got the underlying data from AT&T, it is an open question whether my privacy has been violated – at least until a human being reviews that data. If there’s no privacy violation, it’s hard to see how I would be aggrieved.** Moreover, under § 2712, even if someone reviews, uses, or discloses my phone call data, one could argue about whether I am aggrieved by that review, use or disclosure. What is done with the data matters. Some uses will be harmless, others noxious. Without establishing some kind of harm, the plaintiffs may not be able to defeat the Government’s motion to dismiss.
Whatever the legal merits are here, politically and morally the Obama Administration is making a terrible blunder. At this point in history, we ought to be holding accountable those yahoos in the Bush Administration that employed extraordinary rendition and approved illegal surveillance. But instead we’re sticking our heads in the sand, invoking every fancy legal trick to evade responsibility.
** Lawyers out there – this is especially true given that under § 1810 of FISA, a person aggrieved is essentially someone who would have standing under the Fourth Amendment to raise claims relating to electronic surveillance. See Rakus v. Illinois, 439 U.S. 128, 132 n.2 (1978).
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