If You Keep Getting Stopped at Airports, That’s Not a Secret
This article, published yesterday morning, on the al-Haramain case provides a little background on the Administration’s expanding use of State Secrets–and of judge’s reluctance to challenge it.
Presidential administrations have invoked the privilege about 55 times since the U.S. Supreme Court enshrined the notion into law in a 1953 ruling and Sept. 11, 2001, according to research done by University of Texas, El Paso political science professor William Weaver.
Weaver’s research found that the Bush administration has used it 39 times since 2001 to unilaterally withhold court documents from the court system, the most of any president.
At the height of Cold War tensions between the United States and the former Soviet Union, U.S. presidents used the state secrets privilege six times from 1953 to 1976.
Weaver said the privilege has never been successfully challenged in court.
"Courts are really afraid to confront the executive branch on this issue," Weaver said.
Well, that assertion was a little out of date yesterday. As Ryan Singel reports, a court in Chicago did reject one of the executive branch’s sillier assertion of State Secrets back on March 25.
Eight Americans of south Asian and Middle Eastern descent who were repeatedly detained at the border for questioning will be able to learn if they are actually on the government’s terrorist watch list, a federal court in Illinois ruled last week, marking the first time that citizens have been able to learn whether they have been added to a sprawling and error-prone list used for screening at borders and traffic stops.
The government invoked the powerful state secrets privilege in the case, arguing that letting the plaintiffs know if they are or aren’t on the list would harm national security since that could alert them to the fact they have been under government scrutiny.
But since the government admits it has stopped the six men and two women more than 35 times, federal Magistrate Judge Sidney Schenkier of the United States Northern Illinois District Court dismissed that argument. Instead he found that the government "failed to establish that, under all the circumstances of this case, disclosure of that information would create a reasonable danger of jeopardizing national security."
Not only did Judge Schenkier reject the Administration’s claim about whether these guys were on the watch list or not (he did uphold the Administration’s claim of State Secrets for its guideline for the watchlist), he made it clear that he doesn’t buy the Administration’s basis for such claim in its pet Unitary Executive theories.
The parties differ on whether the state secrets privilege finds it roots in common law, as plaintiffs argue … or whether it arises from "the President’s powers under Article II of the Constitution to conduct foreign affairs and provide for the national defense," as defendants maintain … The seminal case establishing the state secrets privilege, Reynolds, traced the origins of the privilege to common law evidence principles rather than to the Constitution. … We had reviewed the authorities offered by the government in support of the proposition that the state secrets privilege emanates from the Constitution, and we find them unpersuasive.
Now, the timing on this is somewhat confusing. Schenkier first issued this order on March 25, but then reissued it (after correcting some typos) on April 16, which is the date on this opinion. The March 25 deadline is consistent with the first deadline Schenkier gave for turning over the documents–April 15. Schenkier has already granted the government two extensions on that deadline: first to April 29, and then to May 13. And while there are other parts of this suit that have already been appealed, it doesn’t appear that the government has–yet–appealed this decision, though I suspect (and Schenkier acknowledges) that they will.
So the plaintiffs in this case are unlikely to verify that they were or are on the terrorist watch list anytime soon. But it will begin the process of challenging one of the Administration’s more absurd claims of State Secrets.
OT – EW, in case you missed my tip last night, here it is again:
Saw it. In fact, when bmaz emailed it to me, he said something specifically about MadDog salivating.
Magistrate/District?
This is SOP. In a code section increased number of areas over the last ten years, magistrates have been given wider latitude to review cases, and of course the District Court has the final say but often adopts their recommendation.
What it meant is that the magistrate judge issued a recommendation that will be reviewed by the District Court pursuant to FRCP Rule 72:
Magistrate Judges Pretrial Orders Rule 72
What happens in these situations is that the magistrate issues an R&R–and this occurs in criminal cases as well although there it’s the FRCrP that govern–same deal though with the magistrates.
Magistrate issues an R&R and the district court either adopts it (most of the time in criminal cases and civil cases) or overrules or modifies it. Often if both parties agree, pretrial issues get out of the way when the magistrate reviews them either in civil or criminal cases.
This will context it for you I think.
From:
So You Wanna Be a Law Clerk
I think that’s what you were getting at LooHoo but maybe not.
Wow! Thanks. Most helpful.
Re: the email case — Seems odd that the GWU-NSArchive article never said WHAT the deadline was; the Facciola order PDF says he wants the answers by May 5 (after which he’ll issue another order/report).
IANAL, so I don’t know if judges are usually so snarky in their orders? This one was fun to read ;> Facciola also sounded positively regretful that he couldn’t justify ordering depositions of dear Theresa and a NARA witness.
The new date for info is May 5th…
Am I reading this right, that the Magistrate failed to come down hard on
Theresa Payton for her inconsistencies? Why?
Ew,
Was the Admin represented by AUSA from NDIL or by lawyers from Main Justice on this case? The states secrets case, not the archives case.
Looking at the end of this pdf of a government filing from September 2007
http://blog.wired.com/27bstrok…..answer.PDF
the case technically goes through Fitzgerald’s office because his is one of the names on it but it is being taken care of by a couple of lawyers from DOJ’s Civil Division James Gilligan and Andrea Gacki. The complaint is actually against Michael Chertoff Secretary of Homeland Security et al.
These btw are the named defendants:
The case has both a judge and magistrate judge assigned to it per the pdf I cited above. I don’t know the law on this.
As the subject of the suit is a DHS program, have I mentioned yet the pertinent fact that Michael Chertoff is the most incompetent man in Washington?
Eight Americans of south Asian and Middle Eastern descent who were repeatedly detained at the border for questioning will be able to learn if they are actually on the government’s terrorist watch list, a federal court in Illinois ruled last week, marking the first time that citizens have been able to learn whether they have been added to a sprawling and error-prone list used for screening at borders and traffic stops.
The government invoked the powerful state secrets privilege in the case, arguing that letting the plaintiffs know if they are or aren’t on the list would harm national security since that could alert them to the fact they have been under government scrutiny.
The watch list is all politics and who you know or don’t know. Henry Kissenger is wanted for war crimes in how many countries and would be wanted in many more if it were not for American pressure but I bet he never gets stopped.
So my question is what do you have to do to get on a watch list if your white? Because planning to kill brown people does not qualify heck Negroponte got hired by Bush 2 for his expertise in it.
here’s the thing, the president gets it’s power from congress not the other way around
congress has to reign in this despot, he uses his executive priviledge to say
“I don’t care what you want from me you can’t have it”
congress has to say;
“yes we can”
sadly, the only thing they can do is impeach and we know that’s not gonna happen thanx to an inept speaker of the house
this president has destroyed our country, the democrats are in power and they have no excuse, they are accomplices to the crimes of this administration
WRT the WH e-mail order, I found this noteworthy …
WRT the State Secrets case (whether or not plaintiffs are on a federal watchlist), the Order is not as sweeping as one might imagine. However, the logical conundrum or tension between having secret watchlists on the one hand, and claiming there are constitutional limits to surveillance without probable cause on the other hand, is quite nicely summarized in Magistrate Judge Schenkier’s Memorandum Opinion and Order in the Rahman case.
Well gee, that sounds reasonable, probably wouldn’t want to tip off people that they are under suspicion….
Hmmm, I think they might already have an inkling that they are under suspicion. The Bushies aren’t even trying anymore; this is just freaking absurd. Make it stop please.
cboldt – I see you are in understatement mode this morning.
Heh, no kidding.
Totally off topic but two neurons just bumped into each other and it occurred to be that “bmaz” might mean that you’re in Arizona (and for that matter AZMatt might be as well!). Coffee is an amazing thing.
The reason this is of interest is that I’m in Phoenix for the next five weeks (getting out just before they crank the thermostat up).
– MarkusQ
P.S. If you’d rather not post your location on a public forum, or if you’d be interested in meeting for lunch or something sometime, my email is at reality.com and I use the same user name everywhere.
Markus – Yep, I am indeed in Phoenix, I think that cat was freed from the bag a long time ago. You must not have caught all our football/sports trash talk here. Sounds good to me, I will try to email you later, got to go see about getting a dude moved from one jail to another (we got a sheriff here that makes Doug Feith look like Albert Einstein). If for any reason I space out, remind me here in comments.
O/T, but since I think it is always a good thing when the courts protect individuals from unreasonable search and seizure, and the previous discussion on this blog of the reliability of anthrax-sniffing dogs, I wanted to share this good news from the Supreme Court of Canada this morning. What is especially encouraging was the willingness of the Court to do so even in the face of The War on Certain Kinds of Drugs and Their Users. From the Canadian Press:
“Canada’s top court says both a random high-school search and one at a Calgary bus terminal were unlawful, calling them breaches of privacy.
The Supreme Court of Canada has ruled 6-3 that neither search was based on a reasonable prior suspicion of a criminal act.
The first case stems from the sudden arrival in 2002 of police and a canine team at St. Patrick’s high school in Sarnia, Ont.
Students were confined to classrooms for about two hours while a drug-sniffing dog eventually led officers to a pile of backpacks in an empty gymnasium – one containing bags of marijuana and some magic mushrooms.
“The subject matter of the sniff is not public air space,” said the decision in the high-school case. “It is the concealed contents of the backpack.
“As with briefcases, purses and suitcases, backpacks are the repository of much that is personal. . . . Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support.”
The companion case involved a man found with cocaine and heroin after his bags were flagged by a drug-sniffing dog at a Calgary bus terminal in January 2002.
A student identified only as A.M. was charged with possession of marijuana for the purpose of trafficking in the school case, while Gurmakh Kang Brown was charged in the second case.
Police had no search warrant or prior tip that there were drugs in the school. The officers had instead visited on the basis of a long-standing invitation from school officials.
At trial, the drugs were excluded as evidence and the charges dropped.
The Ontario Court of Appeal unanimously upheld the acquittal, describing the case as “a warrantless, random search with the entire student body held in detention.”
Said the Supreme Court: “The dog-sniff search was unreasonably undertaken because there was no proper justification.”
“While the sniffer-dog search may have been seen by the police as an efficient use of their resources, and by the principal of the school as an efficient way to advance a zero-tolerance policy, these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school.”
Outstanding! That just doubles the pleasure and doubles the fun of my morning, and I was already thrilled and jumping for joy because – wait for it – THEY’RE BACK! Yep, the Wackiest Ships In The Iranian Navy and an unidentified radio voice to boot! If there is a Great Spirit in the Sky, please, oh please, let it be the Filipino Monkey! From MSNBC, and served up for your maritime pleasure:
lol … Oh, let it be.
My son, the teenager, remembered me telling him about the “Hands Across America” effort.
He suggested that everyone US and Canadian who stnad for individual rights and the rule of law should make a Hands (Or Fingers) Across North America – No Fingerprints Please!
klynn, if you or son of klynn is still reading: I believe in democracy, like very very deeply, I can’t tell you how deeply, so even if I’m protective of our own up here, I am so drawn into your struggles to save yours, and I hope for you so much. Most Canadians do. We sit here watching from the sidelines, really frustrated because we can’t help much.
We aren’t in quite the same boat, but we’re all in boats by now, eh? Rowing along together.
Ishmael! Thank you! I’m just bouncing up and down with joy at that news.
Now, if we can only get one of the Taser(TM) cases to the Supremes. Our police here think that those infernal things will help them to do their work so much more efficiently … Oh, yes, they do. And we’ve got the dead bodies all over the place to prove it.
But we’ve got good Supremes!
“judges’” in line 2 maybe?
IMO (which isn’t all that universal ) Weaver’s research is incomplete, though, in its failure to identify the Keith case as a state secrets case. I don’t know how you call it anything else. Gov did just what it did in the Reynolds’ case and met all the Reynolds’ tests in how it invoked privilege to keep information secret based on security reasons.
(interesting the prohibition about private parties in light of the telecom suits, eh?)
The Keith case was about a national security privilege invoked by the governmnet to keep it from having to reveal its warrantless wiretap information. Gov claimed the privilege – the claim was lodged by the AG as head of hte dept which had control over the warrantless wiretapping, and the affidavit stated it was made based on Mitchell’s personal review. The government’s claim in the Keith case was a flat out national security/state secrets claim. There was even claim that all the “domestic” activity was interelated with foreign threats.
And the Sup Ct specifically overruled the state secrets assertions and required disclosure.
I posted this before, but here’s a bit about what was actually going on in the Keith case.
Gov had wiretapped members of the “White Panthers” without any court order. Gov later went over the White Panthers in a criminal trial and “supposedly” not even the lawyers handling the case knew about the wiretaps. Still, defense made a broad request for info and back then, in a DOJ led by Mitchell (FREAKIN MITCHELL looks like an altar boy next to even the “heroes” Goldsmith and Comey) DOJ told the court the truth – that there were wiretaps, but DOJ didn’t want to produce them and they had not been obtained with a court order.
Now, of course, you have dozens of Administration lawyers who all know about evidence being requested in dozens of cases and they all help hide and destroy and lie about it all. Hard to believe that the Mitchell years would look good by any comparisons, but they do in this case. I
In any event, Judge Keith told gov to cough up the tapes.
emph. added
OT – Mad Dog, the pieces you were sharing in the ealier thread about the tidbits you were finding were all really interesting.
The CIA has a letter from a member of Congress to an NGO and refuses to turn it over as because they are saying their having it is classified? The CIA has an office of general counsel letter on declassification recommendations that it is withholding as classified and privileged bc it was prepared in contemplation of litigation?
You were certainly finding interesting stuff.
So, as i head out the door, I renew my question from my post, and that I have had from the get go on the tape destruction, um, just exactly how the hell is it legal? Let me answer that, IT WAS NOT. In many regards, it is hard to imagine a more serious example of governmental evidentiary malfeasance. I guess we should all just move along though…
23 – It boggles my mind bmaz. From the get go there was substantial likelihood of litigation. Not only “known” but papered over and over in memos, emails, etc. raising the litigation possiblities. The recent declarations all say this stuff was being done in contemplation of litigation.
But “prosecutor” after prosecutor and lawyer after lawyer in the Admin just pretended that things could be destroyed and covered up, left and right and that they somehow could just wash their hands of any responsiblity for the spoliation and obstruction.
Think what would happen to a corporation who had a cadre of lawyers who ALL – every FREAKING single ONE of them – did what the Admin lawyers have done here.
I have a hard time moving along on that one.
bmaz’s past posts said that some documents were classified because they deal with an actual case being litigated. It struck me that the Senate Reservations say that the US “reserves the right specifically to agree to follow this or any other procedure for arbitration in a particular case.”
So Ashcroft says what we did was legal because it falls under the reservation that allows us to decide to torture in a case-by-case basis.
But then documents are classified because they deal with a particular case.
How convenient for Team Torture that oversight is stuck in a loop.
klynn et al. — W/r/t provenance of the reactor photos specifically, what if anything shown in them indicates they were actually taken inside the Syrian facility? Is there any reason why those ones couldn’t have been taken inside the North Korean facility instead? Because seeing the North Korean nuclear program head and a number of seemingly Korean people wouldn’t be so unusual in a photo taken in North Korea. And while seeing the Syrian official in North Korea certainly would show a North Korea-Syria nuclear connection, it would be way, way weaker than seeing Koreans and a reactor inside Syria, and certainly not proof of a reactor being built in Syria with North Korean support. So I have to agree with klynn, in this case the interpretation of the interior photos is all.
Ack, sorry, wrong thread!
Thanks much for this EW. This is one of those EW blogs where not only do the ideas flow, but the links that spring from those in the blog are very helpful. I am pasting some of them that sprang from Ryan Singel’s articles, including a site I hadn’t seen before that I think is very prescient and caused the author to be harassed by the FBI for almost a year before they dropped his harassment and case after he acquired an excellent pro bono lawyer.
I never could make your first link work though EW so I went to the paper and tried to find articles on State Secrets and the al-Haramain case. I either get redirected to a blank page by that link or 404′d–don’t know why. Other links work fine.
Besides all the Ryan Singel Wired Blog links that caught me up on the clusterfuck that is the TSA and it’s completely absurd million plus and growing terrorist watch lists that fuck up people trying to get to Poughkipsee or wherever the hell to see mom or Aunt Martha, I ran across thess site in the comments of one of the first Wired article that EW linked and I pass it on. If I’m in EPUville (par) where I live a lot. I’ll call attention to them some other time when it is somewhat (or not) appropriate.
Anyone interested in purported security fucking with your privacy and civil rights, (and it is now in a billion ways, which it always does with this admnistration and their lacky Congress and Senate should check out:
Check out
New TSA Website back online – Now Less Phishy
TSA has outsourced the TSA Traveler Identity Verification Program?
Slight Paranoia’s Old Site
Can TSA be trusted not to data discriminate?
I meant to add this article that led me to Christopher Soghoian’s websites (old and new). If you hit the links at the end of Ryan Singel’s excellent articles at Wired Blog, you’ll get a pretty good understanding of one of the major fuckups of this totalitarian government–emphasizing and disrupting air travel as a perceived/purported terrorist epicenter while failing to x-ray more than 6% of the cargo, and pretending if someone were a terrorist with an IQ 1/50 of the thermometer, they couldn’t figure out how to release a dirty bomb without involving air travel.
I should add that the Magistrate’s R&R that EW highlighted has by percentages an excellent chance of being reversed, because by and large we have a cowed compliant judiciary ready to orgasm over any scent of state secrets and side with the government in every issue before any district or appellate federal court.
The Supreme Court already is batting 1000% in denying cert. to any single State Secrets case where a cert. brief has been made from both the 4th and D.C. Circuits. This ain’t gonna change.
I’d look for the 9th to reverse this depending on which panel gets it unless the District Court pisses on the R&R–and I guarantee you it will be appealed until the government gets the totalitarian milieu out of this case it thrives on.
The article I meant to add is:
DHS Re-Launches Watchlist Help Site After 27B Crushed the Old One – UPDATED