Today's NYT reports that the Justice Department will claim the "state secrets" privilege requires the dismissal of a private lawsuit against the "Swift" banking consortium for providing the U.S. government with access to financial transaction records.
The Bush administration is signaling that it plans to turn again to a legal tool, the “state secrets” privilege, to try to stop a suit against a Belgian banking cooperative that secretly supplied millions of private financial records to the United States government, court documents show.
The suit against the consortium, known as Swift, threatens to disrupt the operations of a vital national security program and to disclose “highly classified information” if it continues, the Justice Department has said in court filings.
A hearing on the suit is scheduled for Friday in federal court in Alexandria, Va. . . .
If the administration makes good on its intention to invoke the privilege in the Swift suit, it would be one of the most significant tests of the privilege.
Swift is considered the nerve center of the global banking industry, routing trillions of dollars each day among banks, brokerage houses and other financial institutions. Its partnership with Washington, reported in The New York Times in June 2006, gave Central Intelligence Agency and Treasury Department officials access to millions of records on international banking transactions.
The access was part of an effort to trace money that investigators believed might be linked to financing of terrorism.
There is simply no way I can think of to draft a rule as you suggest. How do you decide which side to punish for the government's action?
We can fix some of the cases. For example, in the Hepting cases (involving AT&T disclosure to the NSA), the plaintiffs don't seek any information from the government.
The Totten bar should be narrowed to parties in privity with the government and the extraordinary rendition case recognized as wrongly decided.
But how to fix the larger problem?
By requiring an in-camera review (DC Circuit + appeal to the SCOTUS) to determine if there is a legitimate state secret interest. There are two (related parts)
a) Whether there are bona-fide state secrets involved (as opposed to matters known to anyone capable of picking up the New York Times). Worse still, in Reynolds, there wasn't even any state secret to hide at all*.
b) Whether the alleged government wrong-doing is so egregious that it amounts to an entirely illegitimate program that does not deserve protection as it advances no state interest. Since there is no government defined apart and separate from the Constitution, if the government acts beyond its constricts it is no longer acting a 'state' and ought not to have the benefit of the very document it is subverting.
These two matters should be decided before a neutral magistrate before anyone.
* Footnote: To defenders of the current state secrets doctrine. Knowing as we do now, that the argument the government put forth in Reynolds was a total and complete fabrication (see here or in more gory detail in this PDF).
The government went before the SCOTUS and lied and got away with the creation of a doctrine that allows them to simply certify certain facts that, in most cases, completely ends the litigation. It's so perverse that it boggles my mind to think about it and, in an important way, it show the contempt with which the executive holds the courts.
Except, of course, for the time they published photos of Donald Rumsfeld's house, and every other time this sort of over-the-top rhetoric has been deployed. It's getting old.
Don't you get how reactionary it sounds to constantly go around demanding that people be charged with treason?
The NYT article harmed the ability to fight terrorism like my spit cures cancer. Documents from Afghanistan from the 90s show that AQ were consistently paranoid about using any form of electronic communication, instead relying on messengers. They already knew or assumed that we could listen in to virtually any phone conversation.
The only people that actually gained any information from the NYT were the American people. Remember that next time you make wild accusations of treason.
I suppose the answer to that question is by now obvious. :)
David Schwartz is right, lawsuits involving alleged state secrets, particularly during wartime, are an extremely difficult problem in a free society. He apparently believes that El-Masri was wrongly decided, and he may be right, but I think we simply don't have the facts we need to make that decision (and that's the problem). The judge necessarily had to rely on materials and information that wasn't made public.
In the end, I think we just give such cases multiple levels of judicial review, and hope for the best. Perhaps an automatic appeal to the Supreme Court in state-secret-defense cases is indeed a good way to ensure that the government will use the defense sparingly.
Especially when we are in an Orwellian permanent state of "war" called the War on Terror.
Do you understand what the SWIFT system is? It deals with international transfers of money between banks. It does not deal with a deposit you make to your local bank. It is impossible to transfer money internationally without using the system, and contrary to your assertion, terrorists were using it. That is why the NYT disclosure was harmful. And of course you ignored the fact that this was exactly the technique that the NYT advocated the government use in the war against terror.
Agreed. The continued amorphousness of our state of hostilities has huge ramifications, from Gitmo to the Eastern District of Virginia.
Oren, with all due respect either you don’t know what you are talking about or you refuse to acknowledge reality. If one follows you logic then no criminal would ever use the phone because everyone knows that the police and the FBI can place a wiretap, but for some reason they still make telephone calls. Isn’t that strange.
Really. Because I dealt drugs for 5 years and every dumbass on the street knew only to use disposable prepaid phones (bought with cash, tossed every 2 weeks) on anything vaguely important. If the Feds are still catching anyone using traditional wiretaps, they are doing the criminal world a favor by culling the chum at the bottom.
Ha!
Terrorists were also using US denominated cash. Should we set in place a system to track all US currency?
As you know.
And misrepresent.
Surprise.
There are other, inefficient, ways to transfer money. The informal but ubiquitous Muslim system of reciprocal obligations can do it. Actual smuggling of cash can do it.
But the primary loss in outing the swift program was the inability to follow the money.
For some, that's a feature, not a bug.
except they don't. i've written dozens of warrants and admin subpoenas related to cell phones and dopers STILL use them. similar to how burglars still (often) don't wear gloves even though fingerprinting has been around scores of years.
however, when it comes to anti-terror tactics, especially specific ones against a specific threat, openly stating in the NYT exactly what we are doing is incredibly stupid (i won't argue the treason thang... i'll leave that for others).
unlike terrorist acts themselves, we didn't want to DETER the transfers. we wanted to follow them. telling people that police will be doing DUI patrols before a big weekend is useful - because it acts as a deterrent
telling terrorists how you are tracking their money is not useful because they merely switch to another method of money transfer and we lose valuable intel.
It annoys.
And it makes me disinclined to write a serious response.
But heres one anyway.
I am fully in favor of the SWIFT program as it is currently incarnated (with the auditing and other controls implemented much after the start of the program). After reading the NYT article, I'm certain most reasonable people would likewise support it. The decision on whether it should continue, however, is one that the executive branch is incapable on making unilaterally. To the extent that judicial and legislative involvement absolutely require it, operational secrecy must give way to democratic prerogative.
What's the number?
No "amorphous" state of hostilities exists as far as the courts are concerned. That is completely an issue of public perception. The courts have (mostly) been very careful to trace executive authority to either the AUMF 2001 or the AUMF 2002. They don't buy your claims that we're in a "perpetual" war.
Whit: This is totally off-topic but I don't think the police/DAs that prosecute drug cases realize how much they help the professional dealers by keeping the unprofessional ones locked up. Keep up the good work!
let me give you another example.
many agencies in my area (being liberal seattle) have a "no pursuit policy" except in BARK felonies (burglary, arson, rape, kidnapping, murder ) etc. which means if you steal a car, or commit a burglary, they will not pursue you if you take off (great incentive to criminals to run from the police, we can thanks the ACLU for these policies : ) ...
several have more "liberal" pursuit policies that allow more officer discretion (and sgt. discretion) and allow pursuits for burg, auto theft, etc.
you would THINK the criminals would access police pursuit policies (which are PUBLIC RECORD and available online in many cases) and choose to do their crimes where they are NOT likely to get pursued instead of those areas where we will hunt them down to the ends of the earth.
they don't . because they are stupid, disorganized losers.
i mean just by checking pursuit policies, they could SIGNIFICANTLY decrease their chances of apprehension.
Terror organisations actively hostile to the US really do exist, is the main difference.
And the US really is waging war on them, is it not?
That there's no state actor involved doesn't make the state of war "permanent" - it just makes the criteria for victory more nuanced and nebulous. It doubly doesn't make it Orwellian, since the possibly-fictional states fought against in 1984 were states, after all.
Please refrain from deploying Orwell namedropping without better cause; it helps nothing.
(Plus what Gabriel said, though he doesn't strictly argue against perpetuity as such; we could be in "perpetual" war against Al Quaeda and spinoffs of such, theoretically, if enough states supported them to keep them active.
But the stronger point remains - there's no blank check for unlimited, unending war, and both Congress and the Courts are capable of stopping it, respectively by simply cutting off funding or, perhaps, explicitly revoking authorization under the War Powers Act [can they do that? I think so.], or in the case of the Courts, by finding that the relevant authority has been exceeded, if it has been.)
Well Oren that is something we agree on.
The decision on whether it should continue, however, is one that the executive branch is incapable on making unilaterally. To the extent that judicial and legislative involvement absolutely require it, operational secrecy must give way to democratic prerogative.
According to your own statement above most reasonable people would support it. Then what is the problem? Are you really proposing that our spy agencies be transparent so that every activity they undertake has to be pre-approved by the courts and the legislature? You do realize that no intelligence agency could every function that way?
First, by its very nature, you have to take the government's word whenever they claim "state secrets." Hands up everyone who thinks government bureaucrats will successfully resist the temptation to invoke this doctrine to cover up embarrassing screw-ups . . . or even simply exagerate in order to get rid of a potentially meritorious case. Would anyone, for example, trust a "state secrets" claim made by the current AG?
Second, it gives government bureaucrats complete license to ignore the Constitution -- not to mention ordinary laws -- whenever they feel they need to. This doctrine, at least as the government would like it to be interpreted, makes it impossible to challenge gross Constitutional violations. "The federal government sent a death squad to my house that tortured and killed my husband!", "Sorry, the existence or non-existance of death squads is a state secret. This court should dismiss this claim." Hyperbole, perhaps, but that's the functional equivalent of claims the government is currently making.
At its heart, this is really a seperation-of-powers issue. Who has the final say in defending the Constitution, the Executive or the Judiciary? The current White House has made it clear that it believes that many of its actions -- even its domestic actions -- are not subject to judicial review. Many of us traditionalists disagree.
BTW, the argument that the electoral process is the proper safeguard against "state secrets" claims simply doesn't fly. On this theory, we wouldn't need a constitution at all. The whole purpose of the Bill of Rights is to protect individual rights against the vagaries of the current popular will. Courts have the responsibility to vindicate those rights. It is no answer to "Death squads killed my husband!" to say, "Well, if death squads kill too many people, we'll vote the administration out of office!"
OK, I see your point and I plead insufficient coffee; nonetheless, if the state is going to prevent a case from proceeding shouldn't it take on the burden of paying off the plaintiff as though the state were the defendant and the plaintiff had won?
My thinking is simply that privilege always ought to cost something.
Dude, your statement alone is Orwellian.
Except that the "War on Terror" is a general one, not one against only specific groups or countries.
You can't ever "win" a war on terrorism. It is a tactic, not an ideology or a specific group, even if certain groups make use of the tactic. It's like declaring a "war on pincer movements." As with the "War on Drugs" and the "War on Crime," it is a declared state of hostilities without any end. Your own equivocation demonstrates that. You admit the criteria for victory are nebulous--they aren't nebulous, they are undefined. There literally is no criteria for victory. It is, therefore, literally a war without a a foreseeable end.
Just because you find the similarity of the War on Terror and Orwell's 1984 to be disturbing is not evidence that such a comparison is not apt.
Using the lessons from Orwell is not name dropping, it is learning from history, allegory and reason. There certainly is something to be gained from such a discussion, the ability to stop ourselves before we decent into totalitarianism.
1) Keep filing meritless suits that can't be defended without revealing classified information.
2) Wait for government to assert state state secrets privilege.
3) Hold out hand for money to come pouring in.
There is the not-so-trivial flaw in this plan that we'd have to know, somehow, just which meritless cases, exactly, could only be defended by revealing state secrets. Sounds like a Rule 11 lottery to me. No thanks.
Note, too, the asymmetry here: the government knows exactly which cases do have merit and which might nevertheless be defended by invoking the privilege.
The NYT disclosed nothing, they merely printed. However, in between posting-name changes, maybe you're really referring to the person who disclosed information to a NYT reporter?
Let's assume, for the moment, that the government's SWIFT program is completely unconstitutional. How is it wrong/disloyal to expose the government's illegal activity?
When Mark Felt admitted to being Deep Throat, I was shocked to hear a surprising number of commentators suggesting that Felt was disloyal for leaking information to Woodward. It's hard for me to understand how exposing patently illegal governmental activity is disloyal. On the contrary, it seems to me to be a duty.
If the executive needs extraordinary powers to combat terrorism, or anything else, there's a procedure in place for getting them. There's no excuse whatsoever for the Executive to engage in illegal activity, especially on a long-term basis.
I'm sure the government could find ways to discourage flagrant abuse of the system; and a little abuse would be a small price to pay for discouraging the government from doing an end run around the rule of law.
There's also 28 U.S.C. § 1927, which has no safe harbor, and abusive filers can be subject to injunctions requiring prior approval before the complaint is accepted.
On your say so? That's the rub, isn't it. The issue of whether it's legal or not or constitutional or not never gets adjudicated when the administration drops the
"state secrets" boom on the case. So were left with the "David M. Nieporent Clause" to the Constitution that states "Whatever I say is constitutional shall be constitutional and no person shall have the ability to challenge said declaration".
The Totten bar should be construed narrowly. If you agree to a secret spying arrangement, you can't sue to enforce it.
Otherwise, in a Democracy, the state's secret privilege should be a narrow evidentiary privilege that applies when you seek information from the State or from others in possession of State secrets.
A country that expects its Judiciary to police its Executive can't give the Executive a trump card that immunizes actions from Judiciary review. We need some way to stop the abuses of this privilege while still protecting genuine State secrets.
Until Al-Masri, it wasn't that much of a problem. The vast majority (all?) of state secrets cases involved actual, obvious secrets. They involved (or at least were claimed to involve) actual weapons systems or specific intelligence targets.
But what happened in Al-Masri and what the Executive is trying in Hepting is just fatal to a Democracy. Again, I don't claim to know a complete fix. We need to more fully develop a state secret's doctrine that isn't royal privilege with a few band aids, it needs to be drafted from the ground up to be appropriate to a multi-branch modern Democracy.
You wrote:
You are quite right. What's more, all these people who insist that the NSA program, or the Swift program, or the Patriot Act, etc., are such an abomination to our way of life, will have the opposite opinion should a Democrat occupy the White House in '08. Guaranteed!