- 10/30, Josh Rogin, Foreign Policy, Waterboarding critic named co-chair of Romney’s intelligence transition team
- 10/30, Lincoln Caplan, New York Times Opinion Pages, Secret Surveillance
- 10/30, Pam Benson, CNN, Intelligence budget continues to drop
- 10/29, Nina Totenberg, NPR, Surveillance Act Criticized, But Can It Be Fought?
- 10/28, David B. Caruso, Newsday, Muslim spying troubles John Jay president
- 10/27, Robert F. Worth, New York Times, Al Qaeda-Inspired Groups, Minus Goal of Striking U.S.
- 10/25, Editor, Brooklyn News Corp., Councilman Calls for an NYPD Inspector General to Investigate NYPD’s Surveillance of Muslim Communities
Posts Tagged ‘state secrets’
The following op-ed was written by Sudha Setty, Professor at Western New England University School of Law in Springfield, MA, who specializes in comparative national security. It was originally published in The Herald News on October 28, 2012, and on Truthout.org.
We Americans tend to think that serious grievances deserve a day in court. Yet here in America — unlike some of our allies — courts have eroded access to justice for people injured by misguided national security efforts.
We see the centrality of courts in action every day, from the Supreme Court’s decision on Obamacare this spring to George Zimmerman facing trial for killing Trayvon Martin in Florida. Getting one’s day in court is not a guarantee of victory. But it is fundamental to holding our government and each other accountable.
On Oct. 29, the Supreme Court will hear oral argument in Clapper v. Amnesty International, a case about dragnet domestic surveillance unsupported by warrants. The court’s decision will largely determine whether this aspect of counterterrorism will remain subject to courts, or instead be placed above them.
Over the last decade, judges have repeatedly told torture victims that they don’t have the right to a day in court when they seek compensation. Even when victims have substantial publicly available evidence to support their claims, our government and its private contractors have remained above the law.
Under most circumstances, these plaintiffs would have their day in court. Our constitutional and civil rights demand that. But when it comes to national security, the Bush and Obama administrations asked courts to toss these cases, even before plaintiffs have a chance to share their side of the story, invoking the state secrets privilege and other procedural hurdles.
The courts have been entirely complicit, abdicating their role of providing a forum in which these claims can be heard. Instead of examining the facts and applying the law, our courts routinely dismiss cases at the earliest stages.
American courts have been overly formalistic, nervous and sheepish, consistently bowing before government claims that allowing (even potential) accountability for human rights abuses would somehow be tantamount to inviting terrorism.
Even worse, judges have accepted these claims with little question, washing their hands of the tough business of demanding that our government justify its actions. They echo the misplaced judicial deference that affirmed our government’s decision to intern Japanese Americans during World War II.
Yet other countries facing national security issues for decades have already developed successful alternatives. The Israeli Supreme Court has addressed many security-related claims since its founding. It hears a case if at all possible, and deals with issues related to secret information as they arise. None of this guarantees a favorable outcome for a plaintiff, but it does give everyone their day in court.
The Israeli Supreme Court’s reasoning is worth repeating here. In a case challenging an Israeli military action involving targeted killings (another area in which the U.S. government has successfully evaded judicial review), the Israeli Supreme Court rejected claims that security cannot exist if the government is made accountable for its actions, saying that “where the implementation of a security policy involves a violation of human rights, the court should examine the reasonableness” of the government’s actions.
In England, too, courts have pushed back against their own history of deferring to government secrecy. Relying on principles of open justice, courts have held that the government must disclose information on alleged rendition and torture. They bucked tremendous political pressure, from both the British and U.S. governments.
Unlike their American counterparts, judges in England and Israel have made clear that the job of courts is to make a democratic government accountable to the people when political actors do not.
In the Clapper case, the Obama administration won’t disclose whether the plaintiffs were actually under surveillance, but will paradoxically argue before the Court that the plaintiffs don’t deserve a day in court because they can’t prove (due to government secrecy) that they, in particular, were actually monitored.
It would be a shame — for our country, and for our courts in particular — if the administration’s position prevails. We should be skeptical when our government undermines access to justice, especially when some of our allies are able to maintain this right in the face of equally (if not more) serious national security considerations.
In the end, when courts are unwilling to afford people their day in court, it’s not just the individual plaintiffs who suffer, but rather American democracy as a whole.
On Tuesday, ex-Central Intelligence Agency counterterrorism operative, John Kiriakou, pleaded guilty for violating the Intelligence Identities Protection Act for disclosing information about a former associate to Matthew Cole, who then was a reporter for ABC News. This news comes just two months after the Justice department stated that it would not charge any C.I.A. officials who were involved with the interrogation of detainees during the Bush administration.
Kiriakou could have faced a sentence of multiple decades, but the recommendation of the prosecutor has been thirty months in prison. This sentencing is due to dropping multiple other charges, including helping New York Times reporter, Scott Shane, identify a colleague and lying to the C.I.A. publications board review of his 2010 memoir, “Reluctant Spy: My Secret Life in the C.I.A.’s War on Terror.”
In 2002 Kiriakou was in charge of the team that found Abu Zubaydah in Pakistan, but really came into the public eye in 2007 when he was interviewed by ABC News where he expressed that waterboarding was torture, but necessary for C.I.A. business. For the Obama administration the guilty verdict was following the intense pressure put on the unauthorized release of government secrets. Presently, six former and current officials have been charged with disclosing government secrets during the Obama Administration. This statistic is twice the number of cases presented by all former presidents combined.
The sentence hearing will be held on January 25, 2013, and the criminal investigation began in 2009 when lawyers for suspects at Guantanamo Bay were identifying witnesses to their client’s torture during the interrogations. The identification of the witnesses were linked back to the knowledge that Kiriakou passed onto Cole. Director of the C.I.A., David Petraeus, claimed that the guilty plea was the first successful use of the Intelligence Identities Act in the past three decades and “an important victory for the intelligence community.” This case truly shows the backlash for whistleblowers like Kiriakou. Kiriakou’s exposing the Bush administration’s illegal torture of suspected terrorists has been made into a crime, in which he will spend two and a half years in prison. Unfortunately, telling the truth has its consequences in the Untied States, and this is an indicator of the way in which the government respects the rights of detainees, but also the right of the American public to government accountability.
- 10/16, Stephen Lendman, Sabbah Report, Intensified Warrantless Spying in America
- 10/16, Basil Katz, Huffington Post, NYPD Defends Stop-And-Frisk In ‘Operation Clean Halls’ Bronx Housing Case
- 10/16, Katie Rogers, Raw Story, Facebook users raise privacy concerns as company tweaks security settings
- 10/16, G.W. Schulz, Wired, As Drone Debate Rages, Police Move on to Million-Dollar Spy Planes
- 10/15, Michael Catalini, National Journal, Reid to Bring Cybersecurity Bill to Floor in Nov.
- 10/15, Wall Street Journal, NJ bill would require surveillance notification
At the annual Santa Cruz TEDx program on September 16, Pulitzer Prize-winning investigative journalist Martha Mendoza gave an impassioned presentation about the importance of government transparency and the growing prevalence of ‘sunshine laws’ throughout the world. Drawing on her own experience employing the U.S.’s Freedom of Information Act (FOIA), and similar international laws, Mendoza demonstrated how latent information, made available publicly and contextualized, can affect change from the smallest municipal government to the highest levels of international institutions. With a picture of thousands of government documents piled high behind her, Medoza spoke:
“Those Pieces of paper were nothing. They were just pieces of paper in The National Archives until we were able to bring in that sunlight… bring out the documents and let them speak the truth. And the truth always matters, and as you can see, the truth sets us free.”
In the past 10 years, there has been an explosion of FOIA-like laws throughout the world. On paper, over 5.3 billion people in over 100 countries now have the ability to petition their government with official information requests. However, the reality of the situation often paints a starkly different picture. According to an in-depth expose Mendoza and her colleagues at the Associated Press undertook on worldwide right-to-know (‘RTK’) laws, over half of the world’s governments who have such laws are less-than-forthcoming with, or altogether ignore, their own laws. Part of the reason for the non-compliance may be that the adoption of RTK laws are often financially motivated, such as China’s 2001 adoption of RTK as a precursor to joining World Trade Organization. Others, such as former British PM Tony Blair, who once passionately advocated on the passage of RTK laws, now argue that the freedom of information can inhibit government officials from having candid conversations and hence, are detrimental the normal function of government. But according to Maruice Frankel, Director of Britain’s Campaign for Freedom of Information, “The problem isn’t that these disclosures make frank discussions inside government harder, as Blair Claims. It’s that the disclosures make not telling the truth harder.”
Despite the obstacles one can encounter when pursing the truth through public records, Mendoza believes that in the end, the power of a government’s words, committed to paper and in the hands of an advocate, is indisputable.
“Whatever it is you see that is pestering you, you can do something about it starting with public records. If you go in and you whine and you complain and try to bring about change, you’re not going to have the power that you do if you have it… on paper.”
- 8/29, Editorial, Seattle Times, ACLU lawsuit against Border Patrol moving forward
- 8/29, Aliya Sternstein, NextGov, Compliance with wiretap law is transparent, NSA says
- 8/28, Richard Winton, Los Angeles Times, Police panel OKs guidelines on reporting possible terrorism
- 8/28, Ivan Moreno, Huffington Post, Scott Gessler, Colorado Secretary Of State, Has Questioned At Least 25 Legal Voters, ACLU Says
- 8/28, Kim Chandler, All Alabama, Report details complaints of profiling in wake of new Alabama immigration law
- 8/27, Peter Scheer, Huffington Post, Most Wanted Secret Doc: Justice Dept Memo Analyzing Drone Strikes Against Suspected Terrorists
Book review: Presidents and Civil Liberties from Wilson to Obama: A Story of Poor Custodians by Samuel WalkerMonday, August 20, 2012 at 6:51 pm by Samantha A. Peetros
Samuel Walker’s latest book, Presidents and Civil Liberties from Wilson to Obama: A Story of Poor Custodians, details the untold story of our nation’s leaders in their cumulative failure to guard and advance our civil liberties. While often viewed as a recent development, Walker rebukes the notion of presidential neglect as a modern precept. Rather, Walker portrays the modern state of civil liberty in the context of presidential history, connecting contemporary excesses to the precedents of former administrations.
Walker crafts a linear account of presidential action and dereliction across nearly a century, separating his analysis into four sections: (1) the early years, (2) civil liberties in the Cold War and civil rights era, (3) the post Watergate era, and (4) civil liberties in the age of terrorism. He examines a broad range of civil liberties issues, including First Amendment rights of freedom of speech, press, and assembly; due process; equal protection; privacy rights; and national security issues. In this context, Walker challenges the prevailing views of what makes a president great, as well as our assumptions of partisanship in the preservation of liberty.
While the last decade may seem to suggest that the “War on Terror” is responsible for our disappearing civil liberties, it is important to realize that post-9/11 offenses have their foundations in several administrations—Democratic and Republican alike. The excesses of the Bush and Obama administrations would not be possible without the prior precedents established by their predecessors, from FDR’s order to detain American citizens without due process to Truman’s first use of “State Secrets” protection; from Eisenhower’s creation of Executive Privilege to Ford’s assassination of government leaders; from Carter’s authorization of warrantless wiretapping to Reagan’s suspension of the “exclusionary rule” regarding illegal searches. In context, it becomes increasingly clear that the attack on civil liberties is no recent development. As Walker puts it, “The preference for security over liberty is almost inherent in the office of the presidency”.
Moreover, beyond the realm of the Oval Office, Walker elucidates the development of intelligence agencies in brokering the abuse of liberty. Rejecting the long-accepted premise that intelligence agencies, i.e. CIA, FBI, NSA, operated as rogue entities, Walker suggests they generally acted on orders from the President. Whether it be Johnson’s directive for the CIA to spy on U.S. citizens or Clinton’s use of CIA rendition, Walker clearly demonstrates, how at the hands of the presidency, the intelligence community became the greatest threat to civil liberties.
Walker demonstrates that regardless of perceived presidential greatness, time period, political affiliation, or threat level, presidents have proven themselves to be poor guardians of constitutional principles. Whether due to self-interest or a misguided sense of national security, presidents are generally reluctant to support limits on their own powers, and have often undermined the civil liberties that once inspired our Republic.
The author, Samuel Walker, is also a contributor on the People’s Blog for the Constitution and you can view his submissions online.
- 8/20, S. Amjad Hussain, Toledo (OH) Blade, The Muslim populace, not America, is under siege
- 8/20, Daily Herald (IL), Virginia representative blocks Illinois sale of Thompson prison to feds
- 8/20, Jane Sutton and Josh Meyer, Reuters, Insight: At Guantanamo tribunals, don’t mention the “T” word
- 8/20, Common Dreams, UN Investigator to US: End ‘Conspiracy of Silence’ on Drone Strikes
- 8/20, Glenn Greenwald, Guardian (UK), US drone strikes target rescuers in Pakistan – and the west stays silent
- 8/20, Mike Ludwig, TruthOut, The Government Can Track You by Your Cell Phone Without a Warrant
On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.
The ruling is especially surprising given the judge’s previous criticism of the FBI for lying to him in court.
Fazaga v. FBI addressed claims by a series of southern Californians challenging a long running secret infiltration of their faith institutions by an ex-convict and undercover FBI informant named Craig Monteilh. After being promised a six figure payment to infiltrate mosques across southern California—and even to record sexual encounters with women in those communities to enable subsequent blackmail—Monteilh blew a whistle and joined a case brought by the Council on American-Islamic Relations; Hadsell, Stormer, Richardson & Renick LLP; and the ACLU of Southern California.
US District Judge Cormac J. Carney of the Southern District of California dismissed much of the case this week (leaving intact claims against individual FBI officers under the Foreign Intelligence Surveillance Act), holding that the state secrets privilege and sovereign immunity essentially preclude the suit from moving forward against the government.
News outlets such as The Los Angeles Times have featured analysis from ACLU attorney Ahilan Arulanantham, who correctly noted that Judge Carney’s ruling is “contrary to the basic notion that the judiciary determines what the law is and holds the government to it,” and that the ruling essentially “exempt[s] huge swaths of government activity [from] judicial oversight.”
Missing from most reports, however, are a recognition of the multiple ways in which Carney’s decision erodes democracy.
- 8/15, Emptywheel, Even Liars Get To Invoke State Secrets
- 8/15, Catherine Crump, ACLU, Appeals Court Rules Fourth Amendment Does Not Protect Cell Phone Location Data
- 8/14, Glenn Greenwald, Salon, Secrecy creep
- 8/14, Washington Post, Judge dismisses case against FBI over Calif. mosque spying but allows lawsuit against agents
- 8/14, Sarah Hedgecock, The Daily Beast, TrapWire: The Less-Than-Advertised System To Spy On Americans