Obama administration says government abuses are 'state secrets' beyond judicial scrutiny

April 6, 12:08 PMCivil Liberties ExaminerJ.D. Tuccille

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President Obama's Justice Department says some
government abuses are beyond the jurisdiction
of the courts. (AP Photo/Charles Dharapak)

The Obama administration's argument in February that even some of the worst government abuses are "state secrets" beyond the reach of the courts proves to be no temporary flashback to the Bush era. In a court filing last week, the Justice Department reiterated that argument, demonstrating that, in many ways, not much has changed just because the White House is under new management. 

In the case of Jewel v. NSA, the Electronic Frontier Foundation is suing the federal government over widespread illegal surveillance of Americans' phone calls and other communication. In the case, former AT&T technician Mark Klein has testified that his old employer actually routs Internet traffic through a specific facility so that government spooks have easy access.

Summary judgment for the Government on all of plaintiffs’ remaining claims against all parties is required because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in this case by the state secrets privilege."

In response, the federal government, under first President George W. Bush, and now President Barack Obama, argues that the merits of the case don't matter, because the government's conduct is beyond the reach of the courts. According to a motion to dismiss filed on April 3 (PDF):

The grounds for this motion are that the Court lacks subject matter jurisdiction with respect to plaintiffs’ statutory claims against the United States because Congress has not waived sovereign immunity, and summary judgment for the Government on all of plaintiffs’ remaining claims against all parties (including any claims not dismissed for lack of jurisdiction) is required because information necessary to litigate plaintiffs’ claims is properly subject to and excluded from use in this case by the state secrets privilege and related statutory privileges.

The government is effectively arguing that it can act with impunity because the evidence that the government has misbehaved is a secret that can't be used to seek to demonstrate violations of the law or the Constitution and to seek redress.

Did the feds abuse your rights? Too bad, they say, because you won't be allowed to prove it in court.

That's a remarkably pernicious argument, since it effectively puts government action beyond scrutiny. Erwin Chemerinsky, dean of the law school at the University of California-Irvine, describes “state secrets” as a sort of  "talismanic phrase" used to muzzle challenges to government authority without going through the bother of actually debating the merits or legality of particular actions and policies.

The Obama administration didn't create the state secrets doctrine, of course. The idea was concocted in the mid-twentieth century and then enthusiastically invoked under the Bush administration to put legally dubious actions beyond challenge by lawsuits or judicial review.

The Obama administration is now picking up where the Bush administration left off, demonstrating an apparent continuity in attitudes toward executive power from the last White House occupant to the current one.

If the courts let the state secrets argument stand, the end result may be that many constitutional and legal protections are reduced to empty words, unenforceable in the courts.

email J.D.: civilliberties (at) tuccille.com