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The Justice Department opens an investigation into the leak of classified information about the Bush domestic surveillance program. The investigation focuses on disclosures to the New York Times about the secret warrantless wiretapping program conducted by the National Security Agency since shortly after the 9/11 attacks (see Early 2002). The White House claims that the Justice Department initiated the investigation on its own after receiving a request from the NSA, and that it was not even informed of the investigation until the decision had already been made. But White House spokesman Trent Duffy hails the investigation, and implicitly accuses the Times of aiding and abetting terrorists by printing its stories. “The leaking of classified information is a serious issue,” Duffy says. “The fact is that al-Qaeda’s playbook is not printed on Page One, and when America’s is, it has serious ramifications.” (Associated Press 12/30/2005) President Bush fuels the attack on the Times when he says, “The fact that we’re discussing this program is helping the enemy.” (Shane 12/30/2005) Many outside of the administration have accused the wiretapping program, which functions without external oversight or court warrants, of being illegal, and Bush of breaking the law by authorizing it. Administration officials insist that Bush has the power to make such a decision, both under the Constitution’s war powers provision and under the post-9/11 Congressional authorization to use military force against terrorism, even though, as former Senate Majority Leader Tom Daschle recalls, Congress explicitly refused to give Bush the authority to take military action inside the US itself (see December 21-22, 2005). And, in a recent letter to the chairs of the House and Senate Intelligence Committees, the White House claimed that the nation’s security needs outweigh the needs of the citizenry to be secure from secret government surveillance. (Associated Press 12/30/2005) Others disagree. The American Civil Liberties Union’s Anthony Romero says, “President Bush broke the law and lied to the American people when he unilaterally authorized secret wiretaps of US citizens. But rather than focus on this constitutional crisis, Attorney General [Alberto] Gonzales is cracking down on critics of his friend and boss. Our nation is strengthened, not weakened, by those whistle-blowers who are courageous enough to speak out on violations of the law.” And Marc Rotenberg, the executive director of the Electronic Privacy Information Center, says the NSA should be the focus of an investigation to determine if it broke federal surveillance laws. Tom Devine of the Government Accountability Project suggests a middle course. His group does not object to a limited investigation into the leak of classified information, but, he says, if the administration does “a blanket witch hunt, which I fear, it would trample all over good government laws” designed to protect government workers who expose wrongdoing. “The whole reason we have whistle-blower laws is so that government workers can act as the public’s eyes and ears to expose illegality or abuse of power.” (Shane 12/30/2005) Ultimately, this leak investigation may not achieve much, according to law professor Carl Tobias. “It doesn’t seem to me that this leak investigation will take on the importance of the Plame case,” Tobias says. “The bigger story here is still the one about domestic spying and whether the president intends, as he said, to continue doing it.” (Eggen 12/31/2005)
The US interagency National Counterterrorism Center (NCTC) maintains a watch list of 325,000 names of international terrorism suspects, a number that has more than quadrupled since the the list was created in 2003 by merging other watch lists together. NCTC officials estimate that, due to aliases, some 200,000 individuals are represented on the list. The main US watch list at the time of 9/11 had 60,000 names on it (see December 11, 1999). An administration official says, “The vast majority are non-US persons and do not live in the US.” However, officials refuse to state how many on the list are US citizens and how many names on the list were obtained through the controversial wiretapping program run by the National Security Agency (NSA). Civil liberties and privacy advocates claim that the scale of the list heightens their concerns that watch lists include the names of large numbers of innocent people. Attorney General Alberto Gonzales tells the Senate Judiciary Committee that he cannot discuss specifics but says, “Information is collected, information is retained, and information disseminated in a way to protect the privacy interests of all Americans.” A September 2003 presidential directive instructs agencies to supply data for the list only about people who are “known or appropriately suspected to be… engaged in conduct constituting, in preparation for, in aid of, or related to terrorism.” Marc Rotenberg, executive director of the Electronic Privacy Information Center, says the scope of the NCTC list highlights the “false positive” problem, in which innocent people have been stopped from flying because their names are wrongly included or are similar to suspects’ names. “If there are that many people on the list, a lot of them probably shouldn’t be there. But how are they ever going to get off?” (Pincus and Eggen 2/15/2006) Numerous problems with the list will be found in 2006 (see March 2006).
Judge Vaughn Walker of the US District Court of Northern California rejects a request by the Justice Department to dismiss a lawsuit by the Electronic Frontier Foundation (EFF—see January 31, 2006) against AT&T. The EFF argues that AT&T violated its customers’ privacy by colluding with the National Security Agency (NSA) in that agency’s allegedly illegal domestic wiretapping project. The government has asserted that the lawsuit would jeopardize “state secrets” if permitted to go forward (see May 22, 2006 and June 23, 2006). According to AT&T whistleblower Mark Klein, working with the EFF in the lawsuit, Walker “ridicule[s]” the government’s request for dismissal on state secrets grounds, finding that “[t]he government has opened the door for judicial inquiry by publicly confirming and denying material information about its monitoring of communications content.… AT&T and the government have for all practical purposes already disclosed that AT&T assists the government in monitoring communication content. [T]he government has publicly admitted the existence of a ‘terrorist surveillance program’ (see After September 11, 2001, After September 11, 2001, October 2001, and September 2002).… Considering the ubiquity of AT&T telecommunications services, it is unclear whether this program could even exist without AT&T’s acquiescence and cooperation.” EFF had given Walker the ammunition for his finding by providing him with a raft of media stories about AT&T’s involvement in the NSA surveillance program, as well as media coverage of Klein’s assertions (see April 12, 2006 and May 17, 2006). “The very subject matter of this action is hardly a secret” any longer, Walker finds (see May 24, 2006). “[D]ismissing this case at the outset would sacrifice liberty for no apparent enhancement of security.” Walker also rejects a separate motion to dismiss by AT&T, which had argued that its relationship with the government made it immune from prosecution. Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “This cases arises against the backdrop of the accountability of the government as it pursues its surveillance program. This is a significant victory for the principle of government accountability.” AT&T spokesman Walt Sharp refuses to give a direct comment about the ruling, but says that AT&T has always protected its customers’ privacy (see February 2001 and Beyond, February 2001, and Late 2002-Early 2003). The government will obtain a stay of Walker’s ruling while it files an appeal, preventing the EFF documents from being publicly disseminated. (Markoff 7/21/2006; Klein 2009, pp. 78-79)
The Justice Department defies a recent court order (see February 27, 2009) and refuses to provide a document that might prove the Bush administration conducted illegal wiretaps on a now-defunct Islamic charity. The Justice Department files a brief with a California federal district court challenging the court’s right to carry out its own decision to make that evidence available in a pending lawsuit. Even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret clearances, and the document would not be made public, the Justice Department claims that the document cannot be entered into evidence. The lawyers for Al Haramain, the Islamic charity and the plaintiffs in the suit, calls the Justice Department’s decision “mind-boggling.”
Government's Position - For its part, the Justice Department writes in a brief that the decision to release the document “is committed to the discretion of the executive branch, and is not subject to judicial review.” The document has been in the possession of the court since 2004, when the government inadvertently released it to the plaintiffs. In the same brief, the Justice Department writes: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the government, the government again requests that the Court stay proceedings while the government considers whether to appeal any such order.” The statement is an implied threat that the Justice Department lawyers will themselves physically remove the document from the court files if the judge says he has the right to allow Al Haramain’s lawyers to see it.
Response from Plaintiff's Attorney - Jon Eisenberg, a lawyer for Al-Haramain, says in an e-mail: “It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge [Virginia] Walker’s chambers to seize the classified material from his files! In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.” Eisenberg says that the Obama administration, through the Justice Department, “seems to be provoking a separation-of-powers confrontation with Judge Walker.”
Administration's Second Use of State Secrets - This is the second time the Obama administration has invoked the “state secrets” privilege to keep information secret (see February 9, 2009). Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “In the Bush administration, the state secrets doctrine was used to buttress the power of the president and make it difficult if not impossible to contest such issues as presidential authority to conduct warrantless wiretapping in the United States. We would think that when such disagreements occur, it’s properly before the judiciary to resolve them. But the Bush administration asserted the state secrets doctrine for the purpose of making it effectively impossible for courts to review the matter.” The Al Haramain case is significant because of “the apparent willingness of the Obama administration’s Justice Department to carry further that same argument in federal court. It is of great concern.” (Eviatar 3/2/2009)
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