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DOJ Invokes State Secrets Privilege in Suit Challenging Surveillance
The National Law Journal
November 02, 2009
Calling it the "only responsible choice," Justice Department officials are invoking the state secrets privilege in trying to thwart a suit that challenges the government's secret wiretapping program.
The Justice Department on Friday night issued a statement from Attorney General Eric Holder Jr. in which he said the suit, pending in the U.S. District Court for the Northern District of California, cannot move forward without jeopardizing national security. The suit, first filed in 2006, presents class action allegations rooted in the government's alleged violation of privacy laws. (Click here for a copy of the complaint.)
On Friday, the government filed a motion to dismiss that cited the state secrets privilege. Holder said the declaration of the state secrets privilege in the suit, Shubert v. Obama, follows new policies and procedures the Justice Department announced last month. The procedures, Holder said, "require a thorough, multi-stage review and rely upon robust judicial and congressional oversight." The review of the privilege involved senior Justice officials, including Deputy Attorney General David Ogden and Associate Attorney General Thomas Perrelli.
Holder said there was no way to carve out classified information from the suit to allow a portion of the case to proceed. The "core claims" in the suit, Holder said, involve ongoing intelligence operations. "We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power," Holder said.
"Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances," Holder said. The attorney general's statement is here.
Ilann Maazel, a lawyer for Shubert and the purported class, said the plaintiffs will oppose the government's motion.
"It's extremely unfortunate and disappointing that the Obama administration has essentially adopted former President Bush's policies regarding the state secrets privilege," said Maazel, a partner in New York's Emery Celli Brinckerhoff & Abady. "In the Justice Department's view, the government is free to violate any law" based on the assertion that national security is involved. "What the government is doing is avoiding any inquiry into the program."
Maazel called the Justice Department's position "extremely dangerous." There are any number of ways to litigate cases that are purportedly rooted in national security, Maazel said. Judges can seal courtrooms and pleadings. The lawyers involved in a case can go through a security clearance process. A judge, and not a jury, can decide the outcome of a case.
This article first appeared on The BLT: The Blog of Legal Times.
