Dec 082009
 
 December 8, 2009  Court, Govt Comments Off on EFF Submits Brief in Key State Secrets Privilege Case

Cindy Cohn writes:

EFF filed an amicus brief in the Ninth Circuit’s en banc review of Mohamed v. Jeppesen, a case brought by the ACLU challenging the CIA’s extraordinary rendition program. A panel of the Ninth Circuit Court of Appeals had rejected the government’s argument that the case had to be dismissed at the outset due to the state secrets privilege. The panel decision is now being considered by a larger, en banc panel of the Court.

EFF notes that the government has made the same dangerous and overreaching state secrets arguments in the domestic warrantless wiretapping cases handled by EFF.

Read more on EFF.

Nov 102009
 
 November 10, 2009  Court, Featured News, Govt, Surveillance Comments Off on Obama administration tries to vacate adverse rulings

Kim Zetter of Threat Level reports on how the government’s motion to vacate prior rulings in Horn v. Huddle may seriously impact other pending cases such as al-Haramain v. Obama.

In Horn v. Huddle, the government settled a 15-year old lawsuit filed by a former DEA agent who claimed he was subjected to illegal eavesdropping. But as part of the settlement, Horn agreed not to oppose the government’s motion to vacate previous rulings in the case by the D.C. courts.

“The opinions will be a valuable resource for litigants and courts as these issues arise in other cases,” the lawyers wrote in their brief (.pdf) Friday.

[…]

The Justice Department is “willing to pay absolute top dollar [in the D.C. case] to get out from some very damaging opinions” says Jon Eisenberg, attorney for the plaintiffs in the Al-Haramain case. “They are desperate to make the decisions go away and to deprive me of the ability to cite those decisions in the future.”

Although district court opinions aren’t binding elsewhere, they are regularly published and cited in other cases.

The D.C. rulings could help convince the California court to let plaintiffs view and use the classified document in their case, Eisenberg says. He notes that the D.C. rulings could be particularly persuasive to the San Francisco judge in the Al-Haramain case because they come from U.S. District Judge Royce Lamberth, head of the Foreign Intelligence Surveillance Court until 2002, who is overseeing the coffee table case. The intelligence court is responsible for approving government requests for wiretaps and other types of surveillance in the U.S. in cases involving foreign spying and terrorism.

“When Judge Lamberth speaks on a matter of national security, people listen,” Eisenberg told Threat Level.

Read more on Threat Level.

Nov 052009
 
 November 5, 2009  Featured News, Govt, Laws, Surveillance, U.S. Comments Off on Two Battles Won: PATRIOT Reform AND State Secrets Reform Bills Pass House Committee

Kevin Bankston of EFF reports some good news in the House of Representatives:

After a long two days of legislative battle, the House Judiciary Committee just finished its second day of debate on Chairman Conyers’ PATRIOT reform bill, HR 3845 (see our wrap-up of the first day). Thanks in no small part to those of you who used our action alert, the Committee rejected almost all amendments that would have weakened the bill’s reforms and voted to recommend the bill to the House floor by a vote of 16 to 10.

Even better, the Committee kept going after it was finished with PATRIOT to consider Representative Nadler’s State Secret Protection Act (HR 984), which would reform the state secrets privilege that the government has repeatedly used to try and throw EFF’s warrantless wiretapping cases out of court. After an impassioned defense by Mr. Nadler, who described how the government has used the privilege like a “magic incantation” to cover-up wrongdoing and warned that state secrecy “is the greatest threat to liberty at present,” the bill passed with even better numbers than the PATRIOT bill, 18 to 12!

Read more on EFF.

Oct 312009
 
 October 31, 2009  Court, Featured News, Govt Comments Off on Statement of Attorney General Eric Holder on Assertion of the State Secrets Privilege in Shubert V. Obama

“The Department of Justice asserted the state secrets privilege in a case today to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country. I authorized this significant step following a careful and thorough review process, and I did so only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.

“Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation. We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security. The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.

“The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion. A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information. Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods.

“As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so. Much like previous litigation in which the government asserted the privilege, the core claims in this case involve questions about ongoing intelligence operations, and allowing it to proceed would disclose critical activities of high value to the national security of this country.

“We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power. Moreover, we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.

“The assertion of the state secrets privilege presents one of the most difficult challenges in balancing the American people’s right to information about actions their government takes and the government’s need to protect vital information that would compromise national security. Making the government more transparent and accountable is one of this administration’s top priorities, which is why my Department has issued reformed guidelines to govern Freedom of Information Act practices, released previously undisclosed Office of Legal Counsel (OLC) memoranda, publishes on an ongoing basis this Department’s OLC memoranda whenever possible, and, indeed, adopted our more restrictive state secrets policy.

“The state secrets privilege also presents challenging questions of executive power. We have attempted to resolve those questions in a manner that ensures robust deliberation and allows for appropriate oversight by the courts and Congress. We believe the action we have taken in this case is the only responsible choice. 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. As always, we will respect the outcome of that process.”

Source: U.S. DOJ