It has been observed that the Barack Obama administration has employed the state secrets privilege more than all preceding presidential administrations combined. There is a certain irony inherent in that fact as Obama ran for office in 2008 specifically committing himself to creating a more open and transparent government.
The contemporary version of the state secrets privilege was first successfully invoked in 1953 in a case involving military secrets. It was intended to provide the government with a mechanism to intervene in judicial proceedings if there were some danger that classified information might be revealed as part of the legal process. In practice, this has meant that if a plaintiff or defendant in a trial sought to use government information to help make his or her case the justice department (DOJ) would be able to intervene ex parte in camera and, after making its case, hopefully obtain a ruling from the judge that the information being sought was inadmissible on grounds of national security.
Originally the secrets privilege was used only rarely and it was also employed with considerable specificity, focusing, for example, on a document or testimony that the government was able to claim would do damage to national security or other significant equities. The department of justice guideline clearly states that the privilege cannot be invoked to “Conceal violations of the law, inefficiency or administrative error” or to “prevent embarrassment to a person, organization or agency of the United States government.” In practice, however, even if error or embarrassment is the real reason for the action, it can always be claimed that the issue involves national security, so the guideline is essentially toothless. Indeed, the very first assertion of the privilege in 1953 was itself fraudulent. After the papers relating to the crash of a military plane were finally declassified in 2000 it was subsequently determined that the driving force behind the cover-up was to avoid embarrassing the Air Force over the poor maintenance of its aircraft.
The decision to declare information admissible or not is up to the presiding judge, but he or she might or might not actually review the relevant document or other evidence in question, frequently relying solely on the government lawyer’s testimony or a DOJ affidavit regarding the potential impact. If the judge concurs in the government case, access to the information would be denied without further discussion and the trial might then proceed.
But deviating from the precedents of how state secrets is supposed to work has made the protections built into the process largely irrelevant. Currently the privilege is most often employed by the government not to stop exposure of a piece of information but rather to intervene to prevent a trial from taking place at all. The George W. Bush administration used state secrets privilege to block litigation relating to torture or abduction, most notably in the 2007 American Civil Liberties Union suit on behalf of five rendition victims filed against Jeppesen DataPlan, a subsidiary of Boeing Company that had participated in the process. The Bush DOJ also twice gagged FBI whistleblower Sibel Edmonds based on state secrets to preemptively block her from saying anything about corruption at the Bureau.
The Bush administration even blocked any legal recourse for those who had been tortured. Canadian Maher Arar, who was detained by U.S. government agents in 2002 and rendered to Syria where he was tortured was denied access to American courts for redress after it turned out he had been accused based on inaccurate information. German citizen Khaled el-Masri was tortured at a U.S. government black site in Afghanistan after being rendered from Macedonia. He was finally released when it was determined that he had been wrongly detained. Both Arar and el-Masri were blocked from suing the United States government through assertion of the state secrets privilege.
The Obama administration has expanded the use of state secrets to stop challenges to the assassination-by-drone program and even to defend no-fly lists. The increased recourse to the state secrets privilege by administrations apparently seeking to avoid scrutiny or accountability has inevitably led to abuses in terms of how it is employed. One is inclined to expect bizarre results when a government can regularly claim that it has secrets that it cannot share that potentially preempt any retributive action through the judiciary. It might rightly be suggested that such action is symptomatic of a totalitarian state, and so it is.
A recent case in a New York Federal court involving a lawsuit that was dismissed by the presiding judge has only received limited media coverage, but it exhibits clearly exactly how judicial remedies targeting government illegality are gradually being stifled by the department of justice. As the government was not even a party to the New York case, it also raises questions about the White House’s willingness to work hand-in-hand with accommodating private organizations to carry out the type of “covert actions” that were once the purview of intelligence organizations.
The defendant in the New York trial was United Against Nuclear Iran, which has a budget just shy of $2 million. The group, which has obtained a 501(c)3 educational tax status which allows it to limit identification of its donors, has offices in Rockefeller Center in New York City and posts its findings using a billboard on Times Square. Describing itself as engaged in “economic and psychological warfare” against Iran, it is active on Capitol Hill providing “expert testimony” for congressional committees, to include “help” in drafting legislation. At a July 2014 Senate Foreign Relations Committee hearing on Iran all three outside witnesses were from UANI.
Meir Dagan, former head of Mossad, is on the UANI advisory board, which also includes ex-Senator Joseph Lieberman, former Homeland Security Adviser Fran Townsend, ex-CIA Director James Woolsey, and former senior diplomat Dennis Ross, all of whom have frequently been seen as favoring Israeli interests. Lieberman, Townsend, Ross, and Woolsey might well have easy access to U.S. government-generated information even though they are no longer in office.
UANI is active in the media but is perhaps best known for its “name and shame” initiatives in which it exposes companies that it claims are doing business with Tehran in violation of U.S. sanctions. UANI routinely intimidates its targets by defaming their business practices as well as by demanding both examination of their books and an audit carried out by one of its own accountants followed by review from an “independent counsel.”
UANI was being sued by a Greek billionaire Victor Restis whom it had outed in 2013. Restis, claiming that he was defamed, believes the exposure was fraudulent and carried out in part to damage his business. He filed suit demanding that UANI and billionaire Thomas Kaplan turn over documents and details of relationships regarding UANI donors who he claimed were linked to the case. Kaplan once boasted “we’ve [UANI] done more to bring Iran to heel than any other private sector initiative.”
Restis intended to expose Kaplan’s connections and associates both inside and outside the government but the department of justice twice intervened in the case, asserting that the exposure of the sought-after documents would damage national security. As in all state secrets cases, the meeting between the judge and the DOJ lawyers was conducted in secret and neither plaintiff nor defense attorneys were given access to the alleged classified material. In state secrets initiatives the DOJ nevertheless normally indicates which agency had sought the intervention and provides some hint of what was involved, but in this case there was no indication why sensitive information would be held by UANI or what the possible government interest in the matter might be. The second DOJ intervention proved decisive as Judge Edgardo Ramos agreed to dismiss the lawsuit on March 26th.
Passing intelligence related or law enforcement documents to a private organization for exploitation is illegal, and it is also illegal for the government to conduct a covert action, meaning an activity that could be plausibly denied and not linked to any federal agency, if doing so might influence opinion or policies in the United States. In this case, the justice department’s only apparent concern was that the activity might be exposed. There was no indication that DOJ would go after UANI for having acquired the information which almost certainly was uncorroborated work product provided by the Treasury Department section responsible for sanctions, the Office for Terrorism and Financial Intelligence, headed by Undersecretary David Cohen.
There is, of course, speculation that UANI is little more than a front for Israeli or U.S. intelligence. That just might be true and should surprise no one, but the more important issue is the right of individuals to litigate to obtain redress from damages inflicted by a second party without interference by the government. Even if one accepts the necessity of having something like a state secrets option on the books, the introduction of the DOJ into a dispute in which the government is not even a party suggests some ugly possibilities.
It would probably not shock anyone to deduce that the White House just might be using the secrets privilege in an indiscriminate fashion to derail inquiry into a situation that it might find embarrassing or where there is potential criminal liability, as appeared to be the case in New York. In Restis v. UANI there is quite clear evidence that something is very wrong and is being covered up. Either classified information was obtained criminally or it was shared with a private organization illegally by the government itself to enable more effective harassment of innocent people and companies. Or perhaps a deliberate attempt was orchestrated by parties currently unknown to shape opinion in the United States through alarming assertions about perfidious Iran and the corrupt businessmen who are enabling it to evade sanctions. It could have had both objectives. Either way, the dismissal of the lawsuit was just one more indication that the tendency of the White House to bend the rules to produce a desired result is, if anything, growing.
Philip Giraldi, a former CIA officer, is executive director of the Council for the National Interest.