Judge Calls Out Obama Admin For Overuse Of State Secrets Privilege In No-Fly Case

from the facts-in-evidence dept

President Barack Obama appears to look at the state secrets privilege in the United States the same way past Presidents have: it’s a horrific injustice all the way up to the exact moment when it becomes available to them to use. For instance, after publicly campaigning against the Bush administration’s use of state secrets exemptions to block litigation over the Patriot Act, he then leaned on them over something as relatively benign as copyright treaties. When it comes to state secrets, there are two related but slightly different issues at play. First, the government tends to be somewhat paranoid when it comes to classifying information in general. Second, but related, is the fact that state secrets are usually invoked domestically under the idea that United States citizens need to be protected against information coming out in the course of legal proceedings. What you end up with from those two issues is a government that keeps pertinent information hidden from its own constituency, often with that information being over-classified. The results of that intersection can often seem laughably paranoid.

Such is the case in a suit brought against the government by a Malaysian citizen, Rahinah Ibrahim, who had been a student at Stanford when she was denied air travel and detained in San Francisco in 2005, the apparent result of being on the no-fly list. U.S. District Judge William Alsup has sharply diverted from his peers in the case, challenging the government’s assertion of state-secrets exemptions for evidence in the case.

In an order issued earlier this month and made public Friday, Alsup instructed lawyers for the government to “show cause” why at least nine documents it labeled as classified should not be turned over to Ibrahim’s lawyers. Alsup said he’d examined the documents and concluded that portions of some of them and the entirety of others could be shown to Ibrahim’s attorneys without implicating national security.

“After a careful review of the classified materials by the Court, this order concludes that a few documents could potentially be produced with little or no modifications to them,” Alsup wrote in an April 2 order (posted here). “This order independently determines that in addition to correspondence between the parties, the two internal training documents are eligible for production to plaintiff’s counsel without implicating national security.”

For the most part, Alsup’s reasoning appears as banal as it does just. Several of the documents requested by Ibrahim’s lawyers are antiquated to the point that their being revealed should pose no danger to national security. This would still be important, since judges as a rule shy away from challenging the White House over classification on national security grounds. Alsup offers his reasons for the challenge, stating that the documents are highly pertinent to the case, that the suit on constitutional grounds is proper, and that the information contained within the documents cannot be obtained anywhere else. In other words, any minimal risk in exposing the documents is trumped by Ibrahim’s rights as the plaintif in seeking justice.

But the real highlight of how silly this all can get is that the government is attempting to include correspondence between Ibrahim and the government as classified. This, Judge Alsup points out, simply cannot be the case. Driving the hypocrisy of the matter home is that Attorney General Eric Holder filed a declaration in the case, supporting the states-secrets claims. Holder, it should be noted, is an appointee of President Obama, who promised reforms in the use of state-secrets.

In summary, past administrations were vilified for doing exactly what Obama is doing now. That is, unless Judge Alsup’s challenge succeeds.

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Comments on “Judge Calls Out Obama Admin For Overuse Of State Secrets Privilege In No-Fly Case”

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20 Comments
Anonymous Coward says:

Re: Just like the farmer and the scorpion...

Speak for yourself. I sure as heck didn’t vote for that shameless hypocrite. Or for that idiot who couldn’t spell “America” correctly.

I voted independent; for someone I thought would actually do a good job running the country, rather than the lesser of two nearly-identical evils.

The two main parties collude to the point that they’re basically one party. The sooner people wise up and start to overcome that “us vs them” mentality, the sooner we can get the country out of the hands of the sociopaths that are currently wrecking it.

Until then, I can at least take comfort in knowing that at least I’m not part of the problem. It beats using your vote for nothing more than to decide which party gets paid to do whatever the lobbyists tell them to.

Anonymous Coward says:

“when she was denied air travel and detained in San Francisco in 2005”

If you’re going to detain someone in this country, you’d better have a reason. And you’d better be willing to share that reason when the case goes to court.

What good are rights if you give them up anytime you attempt to travel?

JarHead (profile) says:

Re: Re:

There’s a minor anecdote running outside of the US, especially in Muslim countries: If you have your name, or part of it, sounded Muslim, forget traveling to the US for any reason. It’ll be lucky if you’re not end up in Gitmo even if you’re traveling there to do humanitarian work. Use the 48 days waiting for the US embassy to respond why you couldn’t fly there from your home country (that is, if ever) for a more productive work instead.

Also, I’ve heard the same anecdote for some small part of Europe. Which part I forgot, cos it’s rare compared to ones made for the US

Anonymous Coward says:

Classified Correspondence?

There is a simple way to handle that when you are the person authoring the correspondence. PUBLISH IT. Once it has been released publicly, it can’t be classified as it is now a matter of public record. Your authored statement is protected by the first amendment and once it is public the proverbial shit can not be put back in the horse.

Anonymous Coward says:

Re: Classified Correspondence?

That’s wrong. Classified information can be published by an individual that does not hold a clearance, but that does not make it unclassified.

If the correspondence is deemed classified by the U.S. government, it isn’t just the contents that are classified, it is the conversation and the knowledge of the conversation even occurring that is classified, or even the analysis put onto it by the collector that wrote the reporting or even an analyst that handled it between the collector and the end user.

Riley says:

Re: Re: Classified Correspondence?

That comment obviously had absolutely nothing to do with the situation that you are describing. I can understand why it would be confusing, since the first line doesn’t make his point clear, though somehow I managed to cleverly deduce his meaning from the second and third sentences which both clearly indicate the publishing would have to happen before classification, thus preventing classification. So it’s probably best if you don’t tell other people they are wrong when you can’t differentiate between between free speech and whistle-blowing. 😉

Once it has been released publicly, it can’t be classified as it is now a matter of public record. Your authored statement is protected by the first amendment and once it is public the proverbial shit can not be put back in the horse.

where the hell does the author say anything about already classified information? (the answer is nowhere). The commenter is talking about the incredibly basic and simplistic concept based off of the First Amendment, of a preemptive measure to prevent the information from being classified in the first place. So unless you are trying to say that the government can charge you with espionage for publishing a correspondence you were involved in (or anything that falls under free speech) before it has been classified, I’m pretty sure that legally he’s 100% correct and unless I have missed something. classification can’t applied retroactively. (thankfully- Or they may just classify the first amendment!) Once that information is in the public domain it’s free speech, and in 2013 that means you can not make that information disappear because it’s available world-wide on the Internet and will inevitably be stored somewhere. They can try to eradicate it afterwards but my guess is it’d be just about as effective as our attempt at eradicating drugs.

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