Deep State

by Marc Ambinder

  The deep state doesn’t stand a chance.

  Notes

  1. Noah Shachtman, “Listen: Secret Libya Psyops, Caught by Online Sleuths,” Wired, March 20, 2011, http://www.wired.com/dangerroom/2011/03/secret-libya-psyops.

  2. David Cenciotti, “The White FEST C-32 to Andrews AFB Using an FBI Callsign on a ‘Black’ Mission?,” May 15, 2011, http://cencio4.wordpress.com/tag/foreign-emergency-support-team/.

  3. Andrew Orlowski, “PayPal Restores Cryptome for Real,” Register, March 11, 2010, http://www.theregister.co.uk/2010/03/11/paypal_cryptome/.

  4. Osama bin Laden Compound Raid Mock-up, Cryptome, October 9, 2012, http://cryptome.org/2012-info/obl-raid-mockup/obl-raid-mockup.htm.

  5. Microsoft Online Services Global Criminal Compliance Handbook, March 2008, http://www.scribd.com/doc/27394899/Microsoft-Spy.

  CHAPTER 16

  Resistance

  In 2005, Pirouz Sedaghaty (Pete Seda) and Soliman al-Buthi, two principals of the Oregon affiliate of the Saudi Arabia–based Al-Haramain Islamic Charity Foundation, were indicted by a federal grand jury. They were accused of conspiring to funnel money from their charity to Chechen rebels engaged in jihad against Russia. The government had obtained evidence that the two men were regularly in contact with an Egyptian who was raising money for the Chechens. Sedaghaty and al-Buthi operated one of several U.S. bank accounts that the charity—designated an official sponsor of terrorism by the Treasury Department in 2004—was using to hold its money.1 Al-Buthi spent most of his time in Saudi Arabia.

  What they didn’t know at the time was that the NSA was intercepting their telephone calls to see who else might have been involved in their particular (and alleged) nexus of terrorism. The men learned of this when, early in the discovery phase of the administrative hearings to confirm the terrorism designation, the Justice Department accidentally provided the defendants with a transcript of conversations between them and a variety of people, including their lawyers. (All parties would hence refer to this bit of work as the Sealed Document.)

  The FBI retrieved the Sealed Document from the various attorneys and parties involved in late 2004, a few months after its disclosure. In 2005, the New York Times revealed the NSA orderless wiretapping program.∗ In 2006, the charity lawyers filed suit against the government, alleging that they had been subjected to surveillance without a warrant.

  The government then asserted the state secrets privilege, meaning the defense attorneys couldn’t reference the potentially illegal wiretaps, as they were a state secret. The defense attorneys said they didn’t need to see the retrieved file—the attorneys and the judge had seen the document. They knew what it said. They knew what it proved.

  No, no, said the government. You saw nothing. The state secrets privilege applies even to your memories. The government insisted that the charity lawyers could not possibly establish a case without referencing the classified information now retroactively erased from the public record. And even if the lawyers could prove that they had been surveilled without referencing the document, they wouldn’t have known to even think about the potential of being surveilled had the (nonexistent, of course) document not been disclosed. The government was, in other words, extending the state secrets privilege to infinity.

  The case would become terribly important to the American Civil Liberties Union and other groups trying to pry open the sealed jar of secrecy.

  Of course, no one can prove what they can’t know. But when it came to being the subject of government surveillance, Al-Haramain was a case where they knew. They knew.2

  While the Bush administration made extensive use of the state secrets privilege, they did not invent it. For fifty-seven years, it has allowed the executive branch to bar sensitive evidence from use in courtrooms. In 1953, the Supreme Court formalized the privilege with United States v. Reynolds. The government successfully prevented widows from seeing the official accident reports after their husbands died piloting U.S. Air Force experimental planes. When the women first requested the report, the Air Force said it would violate national security to provide them. Fifty years later, it emerged that the government had been lying—there was nothing secret in the accident reports. (Again, it’s not hard to see where skepticism about government secrecy comes from.) This raised obvious questions about the legitimacy of the state secrets privilege, but the solicitor general under President Bush stuck to a historical argument: although nothing in the case was truly a secret to modern eyes, and even though the government at the time turned to the state secrets privilege only when every other tack failed, the executive branch would not go about second-guessing security decisions made fifty years ago.

  The privilege remained effectively sacrosanct. Its origins in common law actually reach back much earlier. In 1876, the court said it had no jurisdiction to hear cases involving spy contracts. (The spy in question worked on behalf of Abraham Lincoln and was seeking compensation for services rendered.) The CIA still invokes that decision as a means to block employment disputes from going to trial. The government likewise used a privilege-like argument to squelch disclosure of the technical details of armaments in litigation between military contractors in World War I.

  In United States v. Reynolds, the Supreme Court rejected the government’s argument that it alone should be able to decide whether to withhold information. Instead, it gives judges the final say—in part. The nub of the issue is that the Reynolds decision seems to allow a judge to determine whether national security information rises to the level of a state secret in need of protection without presuming that the judge will automatically have access to that information. How a court can independently determine whether the privilege was properly invoked without seeing what the privilege is actually protecting has been the subject of years of scholarly articles and debate, with no real resolution.

  In practice, the government cannot win a state secrets case unless it provides classified information ex parte and in camera to a judge. Modern cases never involve documents containing information that everyone would agree should be protected. Rather, the issue is always whether a secret has become so public that it’s no longer really a secret, or whether the matter forfeits protection because it might involve government illegality.

  Consider: secrets are now so commonly and quickly revealed that we’ve encouraged extensive legal theorizing over how “leaked” is completely leaked, how “known” is widely known. The executive branch has found itself repeatedly closing the proverbial barn door after the horses are out and then saying to the judicial branch, “What horses?”

  To be sure, the executive branch has asked for, and received, substantial deference from the courts. During the Bush administration, the privilege was invoked by the Justice Department at least a dozen times, often to dismiss without hearings potential cases involving secret interrogation, rendition, and surveillance programs. The number of invocations was not unusual with other administrations. What generated controversy was the aggressive use of the privilege to prevent cases from reaching the discovery stage.3 But if blame should be placed, it belongs to the judges. In 2006, Judge T. S. Ellis threw out a case brought by a German citizen who had been “rendered” from Macedonia to Afghanistan and tortured. Khalid El-Masri wanted economic redress; civil libertarians cottoned to his case as a way to force information into the public domain about the state secret that allowed his rights to be violated so egregiously.

  Judge Ellis’s reasoning: one cannot simply bring a civil case with the primary purpose of forcing disclosure of a state secret. This opinion has resonance. Though no one disagrees that aggrieved victims of torture have every right to have their day in court, courts tend to be skeptical of those cases where major civil liberties groups have attached themselves. Their direct interests differ from the interests of the plaintiffs.4

  An irony in this case: El-Masri’s case for redress had been tacitly endorsed by Secretary of State Condoleezza Rice when she apologized to Germany’s chancellor for the way that
the United States handled El-Masri in custody. (Rice even mentioned handling such cases in “proper” courts.) This would seem to undercut any claim of privilege—the government could not argue that the rendition program was still a secret because it had already acknowledged its existence. El-Masri could point to evidence in the public domain that he was the victim of a specific CIA program. Still, Judge Ellis, relying on precedent, would not budge, accepting the government’s argument that acknowledgment of a program in general does not compel the government to acknowledge specifics of a program that may have significant national security implications. And because the government enjoys, thanks to Reynolds, the presumption that its definition of “national security harms” in particular cases is correct, Ellis had no choice but to rule against El-Masri.5 As Robert Chesney, a University of Texas law professor who served in the Obama administration, has written, the case exposes an extreme version of the basic secrecy tension. Quoting U.S. attorney general Edward Levi, who was speaking after the Supreme Court had rejected Richard Nixon’s executive privilege assertion a year earlier, there is “on one hand, a ‘right of complete confidentiality in government could not only produce a dangerous public ignorance but also destroy the basic representative function of government.’ On the other, ‘a duty of complete disclosure would render impossible the effective operation of government.’” But it seems wrong that the American system of justice could not have found a way for El-Masri to receive some measure of relief.

  Obama the campaigner had pledged to treat secrecy as an operational need as opposed to a constitutional prerogative. Obama the president embraced secrecy with alacrity. Inside his national security cabinet were many different stripes of politicians and military officials with varied opinions on executive power. Obama promised to be sparing in the use of the state secrets privilege. He vowed to usher in a new era of transparency, where government operated less in the shadows.

  Still, he was not unaware that there are bad people in the world. In the summer of 2007, he said he wouldn’t hesitate to violate Pakistan’s sovereignty if he knew that the country knowingly permitted terrorist training camps within its borders. During the campaign, on advice from John Brennan, former director of the Terrorist Threat Identification Center, Obama supported the controversial immunity provisions built into the new Foreign Intelligence Surveillance Act (FISA) law. (If, as a civil liberties activist, you held the view that government surveillance was inherently bad, then you did not share Obama’s view.)∗ Government surveillance was fine, Obama believed, so long as it was conducted within the norms of constitutional law. Nevertheless, the expectation among liberals was that Obama would be less secretive than President Bush, and that he would use executive power more judiciously.

  What concerned Obama, however, was not the perception of secrecy vis-à-vis the public. Rather, it was the perception of secrecy vis-à-vis the other branches of government. He was determined to more fully inform Congress and the judicial branch about secret activities—partly to get their buy-in, but also because he understood, as a constitutional law lecturer, that a vigorous executive branch requires an active and independent check on its power.6 Where the public was concerned, he would reform the Freedom of Information Act (FOIA) procedures that agencies used, reversing the Bush-era bias in favor of secrecy. He would take full advantage of a congressionally mandated panel on civil liberties and privacy that was created in 2007 but had yet to be staffed. He pointedly promised “the most transparent administration in history.” From transparency to Guantánamo Bay, there was hope among civil libertarians that Obama would find a better way to balance competing equities for what his lawyers would call the “classified information privilege.” Then reality intruded.

  Obama’s first three months were spent dealing almost exclusively with pressing cases inherited from the Bush administration. “Almost every day, [White House counsel] Greg Craig would pop into the Oval Office with a sheet of paper and say, ‘Oh, the Justice Department has a filing deadline tomorrow in this Bush-era case. We need to know whether we should continue the opinion or reverse it,’” a former senior administration official recalls “The president would roll his eyes at first, but this stuff really agitated him. He had a lot less discretion than he thought he would.” In many of the cases, without having the time to think through the ramifications, Obama would ask for briefing books with the relevant information, take them to bed with him, and return the next day having concluded that he hadn’t been able to come up with a new way forward, or that he’d deal with the consequences down the road. It was, in a way, the curse of the Twenty-Second Amendment: presidents are limited to two terms, and there’s always unfinished business left for their successors.

  It was no easier on his close friend Eric Holder, the attorney general. On February 3, 2009—the day he was sworn in—Holder got his first classified briefing on a state secrets case, Mohamed et al. v. Jeppesen Dataplan, where the plaintiffs sought redress from the company, which had allegedly helped the government organize the flights that “rendered” them to foreign countries to be tortured. (Mohamed himself endured electric shocks and genital mutilation.) The case came to Holder smartly wrapped in an orange folder marked Top Secret, having been teed up by career officials in the civil division long used to litigating it. Holder had no deputy attorney general, no solicitor general, and no associate attorney general to help him out. And the response was due in six days.7 Even the court expected the administration to change its position. During the campaign, Senator Obama had called warrantless wiretapping illegal.8

  Here’s what happened when Justice Department attorney Doug Letter informed the court that the administration was sticking with the privilege:

  “Is there anything material that has happened” that might have caused the Justice Department to shift its views, asked Judge Mary M. Schroeder, an appointee of President Jimmy Carter, coyly referring to the recent election.

  “No, your honor,” said Mr. Letter.

  Judge Schroeder asked, “The change in administration has no bearing?”

  Once more, he said, “No, Your Honor.” The position he was taking in court on behalf of the government had been “thoroughly vetted with the appropriate officials within the new administration,” and “these are the authorized positions,” he said.9

  There are many different reasons to hold umbrella secrets that have nothing to do with the actual secrets themselves. When Obama’s Justice Department first asserted the state secrets privilege in the Al-Haramain case, many observers concluded that it was forced to do so because of standard legal procedure. The argument went like this: if Justice Department lawyers had retracted the privilege in this case, they would be sending the signal to judges handling other highly sensitive cases that the Obama administration did not consider the executive branch sole decider of what constitutes national security information, or how best to protect that information. The day that Obama’s Justice Department asserted the privilege, therefore, critics asserted that Obama had been captured by the culture of secrecy or had been tempted by the allure of unchecked executive power.10

  But when the decision to reassert the privilege was first made public in March 2009, a senior Justice Department official told one of the authors that the national security equities at stake in the Al-Haramain case were “more than the privilege itself.” Later that year, Attorney General Holder released guidelines for future assertions of the state secrets doctrine. Meanwhile, a senior Justice Department official handling state secrets cases said that where the Obama administration extended the Bush administration’s privilege assertions, it was doing so not to protect the principle—precedent would take care of that—but because there were legitimate and valid reasons for each case in question.

  In the Al-Haramain case, what so rankled civil libertarians was the notion that President Obama seemed determined to permit use of the state secrets privilege even in cases where the plaintiffs could prove that something illegal had happened. Judge Walker had no
problem with the plaintiffs using the classified document, but the Justice Department fiercely resisted. Walker tabled the issue and asked the plaintiffs to make their case using public evidence. In March 2010, he found that the state secrets doctrine did not trump the FISA law requiring warrants. The surveillance had been illegal.

  The decision was good for the lawyers and the charity, but to civil libertarians and critics of warrantless wiretapping it seemed a pyrrhic victory, as Walker did not rule on the merits of the program. (But he had already done that in July 2008, holding that the president’s authority to conduct domestic surveillance was circumscribed by no other statute but the FISA.) Another reason Walker ruled so narrowly was that the Department of Justice under Holder did not argue that the surveillance program was lawful and constitutional, but rather that parts of it were so secret (indeed, still so secret) that any courtroom proceeding—even with the most stringent security measures—would significantly jeopardize national security. This line of reasoning was curious to Judge Walker, who had grown increasingly impatient with the government’s claim that it simply could not and would not go to trial. It seemed equally specious to the plaintiff’s attorneys. After all, their clients wanted justice. They had no intention of forcing the government to reveal state secrets. Several times, in fact, the plaintiffs’ attorneys had informally attempted to resolve the case by asking the Justice Department to admit that the two lawyers were surveilled, and provide relief. “Work with me,” Jon Eisenberg would tell Anthony Coppolino, the lead government attorney, and we’ll end this matter to everyone’s satisfaction without revealing state secrets or harming national security.” But Obama’s lawyers continue to press.