Newsweek: Obama Secrecy Watch II: A State Secrets Affidavit Straight from the Bush Era
When Attorney General Eric Holder invoked the “state secrets” privilege to quash a lawsuit alleging illegal National Security Agency spying last Friday night, his department’s lawyers sounded a lot like those who worked for President George W. Bush. In fact, they justified the action by filing an affidavit from President Obama’s director of national intelligence that is nearly identical to one filed by President Bush’s intelligence director two years ago.
The strikingly similar affidavit—making the same arguments in the almost exactly the same language—is among the strongest examples yet of how Obama administration officials are adopting Bush-era secrecy positions in major national security cases.
Holder’s move came in the case of Shubert v. Obama, a lawsuit filed in 2006 by four residents of Brooklyn, New York. They allege that their overseas phone calls were illegally intercepted by the NSA as part of a massive “dragnet” of warrantless surveillance ordered by Bush after the Sept. 11 attacks.
“It is my judgment that sensitive state secrets are so central to the subject matter of the litigation that any attempt to proceed in the case will…risk exceptionally grave damage to the national security of the United States,” national intelligence director Dennis Blair wrote in an affidavit submitted by Justice Department lawyers on Oct. 30. If that language sounded familiar to the court, it’s because it was: “It is my judgment that sensitive state secrets are so central to the subject matter of the litigation that any attempt to proceed in the case will…risk exceptionally grave damage to the national security of the United States,” wrote J. Michael McConnell, Bush’s intel chief, in an affidavit filed on May 25, 2007, in the same case.
“This is Bush 2. It’s Bush the sequel,” said Ilann Maazel, the lawyer for the Shubert plaintiffs, after reading the Justice Department’s motion and the accompanying affidavit by Blair. “They [the Obama officials] are saying the same thing: ‘Were not going to tell you what our spying program is—and even if it’s illegal, you can’t stop it.’” Asked for comment, Wendy Morigi, a spokeswoman for Blair, said: “Given that the plaintiffs allegations have not changed since the privilege was asserted two years ago, it is not surprising that the declarations are very similar.”
The McConnell affidavit had originally been filed when the Justice Department (then headed by attorney general Alberto Gonzales) first invoked state secrets in the Shubert case, arguing there was no way any aspect of the lawsuit could be litigated without jeopardizing national security. But last spring, a federal judge in San Francisco invited the Justice Department to revisit its position. He did so after a three-judge panel of the 9th Circuit Court of Appeals rejected as overly broad a similar government claim of state secrets in another lawsuit. That case, known as Mohammed v. Jeppesen Dataplan, was filed by former detainees against a Boeing subsidiary that allegedly participated in the CIA’s “extraordinary rendition” of terror suspects to foreign countries that practice torture. In essence, the appellate court concluded that if the Justice Department wanted to invoke state secrets to prevent matters from being heard by a federal court, it must do so regarding specific pieces of evidence only—and could not use the state secrets privilege as a blanket claim to quash the entire lawsuit before it even gets off the ground.
But despite a new policy, announced just last month, that was supposed to limit the use of the state secrets privilege, Holder (after what he called “a careful and thorough review process”) chose to stick with the same position as that taken by the Bush administration.What’s more, the Justice Department didn’t even bother changing the language of many of its arguments.