In a casual conversation in 2009 with a senior administration official sympathetic to the arguments against the constitutionality of warrantless wiretapping, the assertion of the state secrets doctrine was defended in general as a way of “protecting our relationships with allies.” Never before had anyone connected the Al-Haramain case with allies.
But those relationships are worth protecting. Institutionally, the U.S. government takes a mother hen approach to foreign relations. In other words: don’t you dare touch our chicks. (Such an approach was also seen in the aftermath of WikiLeaks.) It is hard to quantify the actual damage to national security that would result if liaison relationships were compromised. There is some logic behind the government’s maternal approach. However, if the state secrets privilege is asserted primarily to avoid signaling to allies that the U.S. government can’t keep things secret from its own court system, then the privilege is being used to recursively justify itself. The national security harm is secondary.
The United States relies on France, Egypt, Morocco, Jordan, and Israel for the bulk of human intelligence information about al-Qaeda targets in the Middle East. Meanwhile, published reports suggest that the United States, the United Kingdom, and Canada collaborated very closely on the controversial renditions of terrorist suspects to Third World countries that subsequently tortured them. (This accounts for relationships with less-than-friendly countries in North Africa, in the Middle East, and even occasional collaborations with countries like Syria and Libya.)
The United Kingdom, in particular, has a highly advanced signals intelligence capacity, run by an agency called the Government Communications Headquarters (GCHQ). It routinely sends technicians and officers to the United States for missions; hundreds of NSA personnel work directly from GCHQ’s headquarters near London. Under a seventy-year-old agreement known colloquially as UK-USA, five countries—the United States, the United Kingdom, Canada, Australia, and New Zealand—cooperate extensively on all matters of intelligence collection programs.∗ A superintending panel of senior executives from each country’s signals intelligence agencies regularly meets to decide collection priorities and divvy up the tasks.†,11
The agreement has given rise to a classic conspiracy theory, appropriated from a technical collection program called Echelon: allegedly, when the United States needs to spy on its own citizens without a warrant, it can call upon the resources of one of its allies to do so, and vice versa. All five UK-USA member states have strenuously denied that they do this—though there is nothing in the agreement itself that would prevent them from doing so. But as one former senior NSA official who worked often with the British put it, UK-USA is just “a gentleman’s agreement.” Still, Michael Hayden and others insist that it would be patently illegal for the United States to ask the British to spy on an internal target if the NSA wasn’t allowed to do so. And it is also true that while the GCHQ gets most U.S. SIGINT product, it does not get everything—nothing derived from FISA monitoring goes overseas or into databases accessible by the British.
The relationship that exists between the various allied SIGINT organizations is a very important one, and the risk of its potential use as a “work-around” in monitoring possible terrorists on U.S. soil perhaps isn’t given sufficient attention. While every member of the National Security Agency signs an oath promising not to spy on U.S. citizens without a warrant, collectors from the UK’s GCHQ are not bound by such obligations. Unlike American intelligence agencies, they don’t have to follow the dictates of Executive Order 12333, which prohibits, in no uncertain terms, domestic intelligence collection without extensive oversight and warrants. (Notably, NSA managers did not ask U.S. soldiers to participate in the earliest incarnation of the terrorist surveillance program.)
This raises larger questions and issues. If liaison worries were behind the government’s extraordinary concerns about Al-Haramain, what would that mean? Is it something as seemingly innocuous as the usage of a particular GCHQ-controlled communication channel—with or without that agency’s knowledge—by the NSA to surveil these two (or more) U.S. persons? Did GCHQ knowingly participate in the program? Was the program farmed out to GCHQ collectors or to American collectors operating out of any of the four other member countries’ intelligence agencies? All of this is unlikely. Because of British domestic politics alone, a disclosure that the GCHQ intercepted the communications of U.S. citizens could cause a row of massive proportions. (Phone hacking scandals often obliterate careers in London.) The disclosure of such activities would certainly lead to a significant curtailing of intelligence sharing between the United States and Britain. It would also, quite probably, cause other U.S. allies to withhold cooperation as well. If the United States cannot keep its arrangements with the UK secret, can less friendly governments expect any better treatment? A senior intelligence official revealed to the authors that in the wake of revelations in the United States about its secret rendition programs, relationships between the British Secret Intelligence Service and the CIA required mending when Obama assumed office. And earlier in the year, a UK court forced the British government to disclose information about the rendition of one of its own citizens. As a result, the United States warned that intelligence cooperation could be jeopardized.12
The British Communications Act of 1985 would seem to prohibit the targeting of citizens under the blanket of the UK-USA agreement, but the laws make exceptions for the general processing of communications that flow through the country. American law does this as well; FISA permits the NSA to collect undifferentiated information incidentally. As a 1998 article on British surveillance in the New Statesman archly concluded, “Whether or not a British government warrant can legally allow American agents to intercept private British communications, there is no doubt that British law as well as British bases have been designed to encourage rather than inhibit the booming industry in international telecommunications surveillance.”∗
It is more reasonable to guess that the secret liaison relationship the government is protecting in the Al-Haramain case is with Saudi Arabia.
In the case, Judge Walker was openly skeptical of the classified evidence being used to justify the state secrets privilege, even as he acknowledged the privilege’s reach and grounding. But the Justice Department assumed that Walker would put a quick end to the proceedings. Walker did not, and indeed at one point he told a government lawyer that he was “not impressed” with the classified evidence. (When the Ninth Circuit heard oral arguments in the case of several detainees who alleged that Jeppesen Dataplan assisted in their illegal rendition to other countries where they were tortured, the government’s attorney, Doug Letter, mentioned the Al-Haramain case as a way of boosting his argument that its secrecy was warranted. But one of the panel judges—Michael Daly Hawkins, who was also on the panel that sent the Al-Haramain case back to Walker—slapped him down, responding that the government knew very well why the Ninth Circuit had not ruled entirely in favor of the plaintiff and implied that it had nothing to do with the quality of the secret evidence.)
On page 14 of the government’s third motion to dismiss the Al-Haramain case, attorneys wrote that “it bears emphasis that nothing plaintiffs cite would establish that any alleged surveillance of plaintiffs (if any) would necessarily have occurred on a wire in the United States in violation of the FISA.” The motion continues, “The Government has many means of surveillance of al Qaeda–affiliated organizations and individuals at its disposal, including surveillance under authority of the FISA itself, surveillance information obtained from foreign or human sources, or surveillance undertaken overseas—that is, collected outside the United States and not on a wire in this country.”13
In the government’s opening brief filed in the Ninth Circuit in July 2011, when suggesting various other ways the NSA might have gotten information about Al-Haramain, there is this: “Alternatively, surveillance abroad may be conducted by foreign intelligence services, which may then forward information to their American c
ounterparts.”
Were government attorneys alluding to something they might have said in a secret filing before Judge Walker or to the Ninth Circuit?—that parts of the Terrorist Surveillance Program were outsourced to a “foreign or human source,” meaning a foreign government, or to another federal agency? The government, in the same motion, noted that it had “previously provided the Court, for in camera, ex parte review, classified information in support of the state secrets privilege which sets forth the actual facts regarding whether or not plaintiffs have been subject to surveillance.” Is this what the government said in those filings about the “actual facts” regarding plaintiff’s surveillance? That it was outsourced? That part of it was? In other words, maybe the Saudi government was “up” on al-Buthi and passing the communications to the United States, or was working with the NSA to allow NSA personnel to eavesdrop on both the domestic and international end of the conversation. If that’s the secret, it’s not a big one. Either the United States was illegally intercepting phone calls (from the Saudi perspective), or it was intercepting them with the help of the Saudis. That’s how the whole thing got started anyway.
Eisenberg (the lawyer for the plaintiff) and his co-attorneys had never raised the possibility that any entity other than the United States was involved in conducting the surveillance, and from the standpoint of their case it really didn’t matter. They did suggest it obliquely in a separate filing, explaining how the government would still be liable for damages even if it hadn’t directly conducted the surveillance. Walker did not address the matter in his ruling. Eisenberg has been cautious about speculating on the secret. But in 2007, he felt compelled to post an item on a relatively obscure liberal website, asking whether it was “possible a foreign government—perhaps the United Kingdom—has colluded with the Bush administration in conducting warrantless electronic surveillance of American citizens?” He was on to something, but the fact of surveillance wasn’t an issue; the evidence suggests that the originating country, and the political implications that could result from that country’s participation being exposed, was the actual secret. And that country was (probably) Saudi Arabia.
On a broader level, Obama had to figure out what to do with its “legal IEDs”—what many on his side considered to be actual crimes of the Bush era: the torture inflicted on detainees; the rendition of prisoners to other countries that tortured them; and the NSA surveillance program. Many decisions involved whether to keep things secret. Others involved whether to reopen investigations and prosecute cases. Obama stuck to a thin piece of ground in the middle of two very polarized sets of elite opinion. The left wanted Dick Cheney tried as a war criminal. The right would seize upon any hesitancy as proof of weakness and was ready to prod agencies like the CIA into going to war with the president.
Outside the Beltway, these issues carried little resonance. Even while the public’s faith in government has steadily declined, as part of the implicit bargain it tends to allow the government to do pretty much whatever it wants in the realm of national security. (Not to say these issues aren’t important—they are, which is why a predilection to cover them is not necessarily a bad bias for the press to have here.)
But Obama’s decision-making satisfied no one, save for a tiny, Washington-based clique consisting largely of middle-of-the-road Democrats, centrist Republicans, and the political press corps, all of whom understood Obama’s reasoning because they operated under the same impression about how the U.S. government really worked. There are many complicating factors in deciding whether to prosecute CIA officers for following an order to torture a prisoner. So far as the CIA is an important instrument of U.S. national security power, a young Democratic president could not be seen as taking a firm stand against field operators simply doing their jobs. This was the argument advanced by Rahm Emanuel, the White House chief of staff. Holder and Emanuel did not see eye to eye from the very beginning.14
Obama was swayed by the pleadings of former directors of the CIA, who said that retrospective prosecution would turn every CIA officer in the field into a lawyer, making ad hoc decisions that were potentially subject to criminal prosecution. This would largely render them powerless. The bureaucracy relied on faithful adherence to executive branch orders. At a higher level, when it came to possibly prosecuting policymakers, the reasoning was more clear: Obama refused to set a precedent that would be hard to undo, no matter how egregious the policies had been. Bloodless transitions of power in the United States are nontrivial; Obama would much later in his first term remark upon this when most of the countries involved in the Arab Spring turned to prosecuting their respective former presidents as the first order of business.
Politically, too, Obama felt he was hamstrung. Had he aggressively made an issue of Bush-era intelligence activities, he would have ensnared the country in debates on policies already undone, incited a partisan frenzy in a polarized atmosphere, and found that his own ability to get things done was crimped. Despite all of these caveats, however, Obama did not entirely step away from the controversies. He told his attorney general that he would defer to him about whether to prosecute CIA interrogators. (Actually, Holder, in pondering whether to take the job as attorney general, asked Obama for independence as a condition of accepting the offer.) He would neither order a new investigation nor step in the way if Holder decided to reopen some cases, despite the urging of his chief of staff.
Holder and Obama agreed to consider prosecuting only those cases where CIA officers acted beyond the strictures of what even John Yoo, author of the memos guiding enhanced interrogation techniques, felt was acceptable. And over the objection of the intelligence community, Obama released redacted versions of Bush-era Office of Legal Counsel opinions on enhanced interrogation techniques. On his first day in office, he signed a memorandum restricting interrogation methods to those prescribed by the Army Field Manual, wagering that secret and potentially immoral techniques were less desirable than legal but potentially beatable ones. The predicate of Obama’s decisions was that these actions would be the end of the “looking back.” He would not endorse congressional calls for an investigation or committee of inquiry. In walking this middle line, Obama would find himself tied to policies he did not necessarily endorse. And an implicit message was sent: however bad the torture stuff had been, it couldn’t have been that bad, because the need to move forward outweighed the need for direct accountability. As a result, the left would continue to be suspicious, the right would never allow Obama to move forward an inch, and the middle was too impotent to do anything else.
Obama was furious with this depiction. Contrary to the assertions of his staff, he did read some of the law blogs that savaged him. Whenever a state secrets case arose—like when the family of Anwar al-Awlaki, the American-born cleric who from his post in Yemen called for the murder of Americans, sued the government to remove his name from a list of allowable targets—Obama spent hours reviewing the case, even though there was almost no question that the government would assert the privilege. According to one source, Obama asked his White House counsels whether there was a way to litigate at least some of the case without using the privilege peremptorily. In al-Awlaki’s case, the Justice Department offered the court four reasons the case wouldn’t stand; the state secrets privilege was their firewall option.
The judge decided the case in the administration’s favor, finding that Al-Awlaki’s father had no standing to challenge the alleged assassination order on his son’s behalf. Inside the Justice Department and the White House, this was a victory—the right way to do things. The privilege would be used as a last resort, and judges would always be provided with classified information to prove that the government wasn’t trying to cover up wrongdoing. Holder hoped that, at the very least, the policy decision to provide judges with ample classified information would set the bar very high for any future administration that tried to litigate state secrets cases while keeping judges in the dark.∗
On September 30, 2011, a U.S.
drone targeted and killed al-Awlaki in Yemen. Senior administration officials, briefing reporters, said that they had concrete evidence that al-Awlaki had directly facilitated several terrorist attacks and provided technical assistance and logistical guidance for two failed terrorist attempts on U.S. soil. This made him a legitimate target under the Authorization for Use of Military Force, according to the administration, regardless of whether he still considered himself a citizen. The ACLU and other civil rights groups rightfully questioned the integrity of the administration’s pronouncements and accurately called his killing the “first targeted assassination of an American citizen” by the American government.
Holder’s reasoning and careful approach to the privilege butted up against a very powerful counterargument. According to Ben Wizner, the lead ACLU attorney for Binyan Mohamed (he of Mohamed et al. v. Jeppesen Dataplan), “Remember, the state secrets privilege was invoked—and the case was dismissed—before the plaintiffs had made a single request for evidence.” He adds, “In fact, all we were seeking was the opportunity to present our claims with evidence already in our possession.” But the Ninth Circuit Court of Appeals ruled that even if they could prove the case with the evidence they had, it had to be dismissed because the trial itself would create what the court felt was an “unjustifiable” risk of compromising the government’s ability to keep a needed secret.
Wizner notes that there is a weird and absolute contradiction at the heart of this ruling, and many others in state secrets cases—one that even defenders of the privilege have trouble with. “The state secrets cases stand for the proposition that no amount of public evidence can overcome a government secrecy claim so long as the ‘privileged’ content has not been officially confirmed.” What does it mean that something can be universally known and yet not confirmed? We have already encountered two examples: the U.S. Joint Special Operations Command, and the CIA Predator drone program. Indeed, when the ACLU recently asked the CIA for documents about the drone program using FOIA, the CIA said that to respond to the request would require them to confirm or deny the existence of a program and said confirmation or denial would itself irredeemably harm national security. The argument then dissolves into circularity: everyone knows about the drone program, the lawyers say. But the CIA says, “Nothing is known until we confirm it.” In other words, if we confirm something, then the enemy will react to it. There’s a difference between what they read in the New York Times and an official declaration of the CIA.
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