The Billionaire, the NSA and the No-Fly List: America's 'State Secret' Obsession Has Gone Too Far

By Trevor Timm, Guardian UK

17 September 14

When lawsuits start hunting for the truth, the Obama administration shuts them down with one overreaching power and three words: just trust us

n lawsuits challenging NSA mass surveillance, torture and drone strikes on Americans in recent years, the US government has turned what was once a narrow legal privilege into an immunity trump card – a kind of get-out-of-jail-free card for “matters of national security”. And now, despite publicly promising to restrict its use, attorney general Eric Holder is trying to expand the power even further.

In Monday’s New York Times, Matt Apuzzo wrote about a fascinating – if bizarre and publicly mysterious – court case between two private parties in which the US justice department has invoked the so-called state secrets privilege. A Greek shipping magnate has accused an advocacy group pushing for sanctions on Iran of lying about him, but the government argues that the case must be dismissed with hardly an explanation, citing only a “concerned federal agency”.

Why a private foundation with no contracts or current affiliations with the government would be holding on to classified information remains unknown. And Holder refuses to disclose the agency demanding secrecy, the type of information he wants secret, or even the basis for invoking the state secrets clause (which, by the way, is an invention of the US supreme court from a 1953 case that was later proved to be based on a lie). Whether everything the plaintiff is alleging is true and provable and illegal does not matter in the eyes of Holder’s justice department. In other words: you can know absolutely nothing, Just Trust Us™. Or, as the plaintiff’s attorney in the case told the Times:

There is no precedent, literally, for what the government is attempting to do.

While the case of the Greek billionaire and the anti-nuclear pressure group is certainly novel in its application of state secrets (and might involve the CIA), the Obama justice department has been using the controversial clause to squash cases of more significant consequence for years. After the Bush administration was widely criticized for expanding the privilege to dismiss entire cases before hearing evidence, Holder allegedly created a policy for restricting its use to all but the most critical national-security cases when he first came into office. But, alas, Holder has since proceeded to shut down the exact types of cases for which George W Bush was so harshly criticized.

And it doesn’t even matter if the basic facts of the case are already public.

Take, for instance, the case brought by the Electronic Frontier Foundation (EFF) – my former employer – challenging NSA phone surveillance. It’s been going on since long before the Edward Snowden revelations, and the government has long been invoking the state secrets privilege to argue the court should dismiss EFF’s case before ever getting to the question of whether the NSA’s mass surveillance programs are unconstitutional. Given that the Obama administration has profusely proclaimed its commitment to transparency after all the NSA information went public, you’d think it would look preposterous if they continued to claim it’s a secret in court.

Nope. Instead, Obama’s justice department doubled down on protecting the truth about the NSA. In EFF’s case, the government is still claiming that NSA’s phone and internet surveillance programs are secret and cannot be challenged in open court.

“For example,” EFF senior attorney Kurt Opsahl told me on Monday, “they say that the Verizon order that the Guardian published does not waive the state secrets Privilege for the whole program, or even for Verizon, or even for Verizon Business – only for Verizon Business for that three-month time period.” So despite the fact that the Director of National Intelligence literally told the public on Friday that the metadata program has been renewed for another 90 days, the government still considers many of the underlying facts of that metadata program a “state secret” in court.

In the past year, the Justice Department has also invoked its egregiously anti-transparency trump card in two cases that involve people challenging the “no-fly list”, the secret government document that keeps tens of thousands of people from boarding airplanes in the United States. While Holder wrote in sworn affidavits that the information he was seeking to protect “could reasonably be expected to cause significant harm to national security”, the information has since become public, and it looks like Holder was abusing the privilege once more.

In one case, the government used the state-secrets privilege despite knowing the only reason a woman was originally added to the no-fly list was because an FBI agent “checked the wrong boxes” nine years earlier. In another case, Holder said he must invoke the privilege even for the unclassified no-fly list guidelines, calling them “a ‘clear roadmap’ to the government’s terrorist-tracking apparatus”. When the Intercept published a leaked set of the guidelines in July, they proved the roadmap’s rules to be so vague and amorphous that they look virtually impossible for anyone to avoid.

Multiple lawsuits brought by the ACLU over the US government’s ability to kill American citizens overseas without a judge or jury have been stymied for similar reasons. A series of cases involving US complicity in kidnapping and torture, all of which were documented in excruciating detail using already-public sources, were also shut down during the Bush administration.

When the Obama administration took over the final case accusing the Bush administration of torture and invoked state secrets again, the judges were visibly taken aback. Didn’t matter: on appeal, it was thrown out of court yet again.

“The only place in the world where these claims can’t be discussed,” ACLU’s Ben Wizner said at the time, “is in this courtroom.”

What’s truly revolting about this abuse of the state secrets privilege is that it used to be an issue Democrats ran against. President Obama said he would reform it in his 2008 campaign, and vice president Joe Biden co-sponsored a bill to do just that. All the Democrats on the Senate Judiciary Committee voted for state secrets reform as well, explicitly citing NSA wiretapping and torture as things that should never be kept classified from the American people – that should always be able to face a challenge in court.

What have we heard since? Not a peep.