Secret Court Proceedings in the NSA Cases: The Next Best Thing to Not Having Courts at All

In every case challenging NSA surveillance, the government is filing briefs and evidence that it says are so secret they can't even be seen by the lawyers for the other side.
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"Something remarkable and disturbing is happening in this case and in others across the country" challenging the NSA's warrantless spying on Americans, wrote the lawyers in the case in Oregon challenging NSA surveillance of domestic attorney-client phone calls. "The executive branch of our federal government, disregarding the admonition that '[d]emocracies die behind closed doors,' is attempting to draw a veil of secrecy over judicial proceedings to determine whether the warrantless eavesdropping program, itself kept secret for years, is unlawful."

It's not unprecedented for courts to insist that the most sensitive government secrets be kept from the public, viewed only by the lawyers for both sides in the case. At times courts have even insisted that lawyers suing the government get security clearance before handling such information. But what's happening in the Oregon case and elsewhere is unique in the judicial history of the Republic: in every case challenging NSA surveillance, the government is filing briefs and evidence that it says are so secret they can't even be seen by the lawyers for the other side. And courts are buying the argument, even making rulings based on these filings where the other side has never had a chance to read them and make counterarguments.

In a case out of Lodi, California, where the defendants claimed the NSA supplied evidence against them, the government filed one of these secret, for-the-court's-eyes-only filings (an "ex parte" filing in legal lingo). The government has made similar secret filings in the criminal cases of Ahmed Abu Ali, Ali Al Timimi, and Iyman Faris in Virginia, all of which challenge the use of NSA surveillance against the defendants. In the Oregon case, the local newspaper sought access to the documents the attorneys for an Islamic charity had filed, showing the NSA was spying on their phone calls to their attorneys in Washington; the government filed a brief opposing access with the court ex parte, and would not allow the newspaper's attorneys or the lawyers for the charity to see it.

The most mind-blowing example comes from Albany, New York, where two men (Yassin Aref and Mohammad Hossain) are accused of laundering money for terrorists. In that case, the defendants filed a motion asking whether any evidence against them came from the NSA program. Despite the fact that their lawyers had security clearance, there were nineteen secret communications between the government's lawyers and the court which the defense lawyers never saw. The punch line: the court rejected the motion to find out whether the NSA illegally spied on defendants, and classified its own ruling, essentially issuing a secret opinion in a criminal trial.

There's no precedent for this anywhere in American history. Judges have sometimes blacked out parts of their opinions to protect classified secrets. But to black out the entire opinion is just astonishing.

You have to go back a long way to find something this outrageous. My favorite comparison is the way the Star Chamber--the secretive English court of inquisition that served the will of tyrants like Henry VIII and Charles I--banned the publishing of all newspapers in England for six years starting in October 1632.

We're not quite at the level of banning reporting about NSA cases (yet), but even our most respected newspapers have been feeling the pressure of the national security claims and self-censoring--the Washington Post got copies of the documents proving the NSA was spying on the attorneys in the Oregon case and, instead of running a story about it, turned in the documents to the government. The AT&T whistleblower apparently gave his evidence of phone company complicity with the NSA to at least one major paper, which seems to have done nothing with it. And the New York Times held the story of the NSA scandal until after the 2004 election. Good thing these editors weren't in charge during Watergate or the Pentagon papers controversy.

It's not surprising that the government is attempting to utilize secret court proceedings: they are the next best thing to having no courts at all. If the President can't convince Congress to eliminate the right to a court hearing at all, as it did with the Detainee Treatment Act (aimed at cutting off our Guantánamo litigation at the knees), then the government's next favorite strategy has been to invoke the "state secrets" privilege. This involves the government submitting an affidavit from a department head saying that any court proceedings would end up spilling secrets that would threaten national security, and asking the court to dismiss the suit just based on those grounds. So, the court's don't make the other side's attorneys seek security clearance and promise not to talk out of school, and don't close the court hearings to the public--they just dismiss the case outright. Shockingly, that argument has worked in a few cases; a court relied on a variation on this theory to dismiss our suit for torture rendition victim Maher Arar earlier this year. The government may try to use this theory to stop our suit against the NSA program when they file their response on May 19. If that won't work, the next best strategy is to make ex parte filings: to insist (as I described above) that even the other side's lawyers can't see the papers--that they are for the court's eyes only--ensuring that the most direct evidence of NSA lawbreaking will never be seen by the outside world.

Luckily, the Oregon court rejected the government's attempt to hide its briefs from the other side, saying "there is a difference between allowing documents into the public record and not allowing plaintiffs' attorneys access to those documents" and "the court should [not base] decisions on facts or arguments not disclosed to the other side."

AT&T is also attempting to stop the court from releasing whistleblower documents, filed with the court in the lawsuit I wrote about three weeks ago. Those documents, as I described in my last posting, show that AT&T helped the government install giant bugs in its main switching stations that intercept all traffic--voice and email--and send copies to the NSA. In seeking to block their release, AT&T is standing in company with the Church of Scientology, which for years has tried to stop church dropouts from posting the church's secret scriptures on the web by bombarding them with lawsuits claiming the documents were trade secrets. AT&T is making the same argument here. CCR submitted an amicus brief arguing that the public deserves to know what's in those documents. You can read our brief here. Among other things, we argue that, if any of the documents contain trade secrets, the court has the power to black out a line here or there, but not to keep all 100-odd pages secret.

This sort of limited redaction is the norm when the government argues a court filing or even part of an opinion is classified. In one of the first opinions to issue after we won attorneys the right to visit clients in Guantánamo, Judge Joyce Hens Green did a nice job of fleshing out the stories of individual detainees' Kafkaesque experiences before their military review panels, blacking out just enough to protect the government's allegedly-sensitive secrets while still managing to tell a coherent story and explain the facts and reasoning that underlay her opinion. That's the very minimum Americans should expect from their court system. Anything less is basically not much better than having no courts at all.

April 27, 2006

p.s: I have exercised my monarchical prerogative over this column to declare "No American Left Unheard" the winner of last week's contest to rename accurately the NSA's "Terrorist Surveillance Program." To "RadicalFringe," who posted it: Write to me at [my last name] and we'll figure out how to confirm your identity and get you a CCR mug.

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