Intelligence Experts and Whistleblowers Fight Against ‘State Secrets’

A coalition of whistleblowers and intelligence experts led by the Electronic Frontier Foundation urged a federal appeals court yesterday to reject another government attempt to derail a lawsuit challenging illegal surveillance as a “state secrets” privilege.

Intelligence Experts and Whistleblowers Fight Against 'State Secrets'
[Photo: The Ashland Daily Tidings, Orville Hector / AP]

The Electronic Frontier Foundation and a coalition of intelligence experts and whistleblowers filed an amicus brief in the case Al-Haramain Islamic Foundation v. Obama to stop a government attempt to bury another lawsuit challenging illegal surveillance with baseless claims of “state secrets.”

EFF’s press release quotes EFF Legal Director Cindy Cohn, who states, “This group includes experts from throughout America’s intelligence community, and they are all concerned about the government’s abuse of the state secrets privilege.” She continues, “If courts cannot review potentially illegal behavior by the government, then there’s no meaningful oversight. That’s unconstitutional. America needs to be able to protect against officials who abuse their power.”

The amicus brief was joined by retired FBI agent Coleen Rowley, who blew the whistle on intelligence failures before the September 11th attacks, and former NSA executive  Thomas Drake, who blew the whistle on systemic privacy violations in intelligence programs at the NSA.

According to the EFF, “Also signing the brief was James Bamford, author of three important books on the NSA, and the Government Accountability Project, the nation’s leading whistleblower organization. Other signers include a counterterrorism deputy from the Bush Administration, a senior CIA analyst, a former intelligence officer from the U.S. Army, and other military veterans.”

The Al-Haramain Islamic Foundation alleges that the NSA illegally wiretapped communications between the charity and its lawyers.

Naturally, the government is neither confirming or denying, instead arguing that it is a matter of states secrets; which, of course, is as good as an admission of guilt. A district judge, however, disagreed with the government and ruled that it violated federal surveillance law.

The government appeal that ruling to the 9th U.S. Circuit Court of Appeals, which is the court in which the EFF and others filed the amicus brief urging them to uphold the district court judge’s ruling.

“Congress has already provided the courts with strong, clear security procedures for handling evidence related to secret government surveillance. Letting the courts do their job and judge the legality of government wiretapping will not risk national security,” said EFF Senior Staff Attorney Kevin Bankston. “The real risk is in allowing government officials to shield their conduct from judicial scrutiny based on broad assertions of state secrecy, which is a recipe for abuse.”

This ruling has the potential to be a real victory against the over-use of state secrets privilege.

Let’s hope that the ruling is upheld in the 9th U.S. Circuit Court of Appeals. However, it will likely make its way to the Supreme Court which is quite sympathetic to executive power these days.

No reason not to hope, though.

For more information on the case, visit the EFF website.