Obama DOJ Still Abusing State Secrets Privilege

Obama DOJ Still Abusing State Secrets Privilege February 2, 2015

It’s been a while since I’ve written about President Obama’s dishonest use of the broad version of the State Secrets Privilege, but he’s still using it to demand the dismissal of several court cases challenging various “anti-terror” actions by his and the previous administration. Kevin Gosztola has the details at Firedoglake.

In a case where a US citizen is alleging his constitutional rights were violated when he was placed on the No Fly List, Attorney General Eric Holder and the United States Justice Department claim a federal judge is not interpreting the state secrets privilege correctly. The judge denied a motion to dismiss in October of last year, and the judge has been reviewing documents relevant to the case to determine whether the government’s state secrets claims are valid.

In March 2009, Gulet Mohamed left the US to study Arabic and connect with family members who were living abroad. He traveled to Yemen and Somalia. Then, in August, he moved to Kuwait, where he continued his studies.

According to a court filing [PDF], when he went to renew his Kuwaiti visitor’s visa on December 20, 2010, he was handcuffed and blindfolded by men in civilian clothes, who took him to a location approximately fifteen minutes from the airport.

Mohamed was held in detention for more than a week and was tortured. His interrogators transferred him to a deportation facility on December 28. He found out he had been placed on the No Fly List when Kuwaiti officials tried to deport him. He remained in the deportation facility for a couple weeks and FBI agents visited him twice. And Mohamed believes agents did this to “pressure him to forgo his right to counsel, submit to invasive questioning and become an informant for the FBI upon returning to the United States.”

He quotes the brief filed by the DOJ:

…[A]s the Government has attempted to explain previously, a challenge to the constitutionality of alleged placement on the No Fly List necessarily requires consideration of the particular means and reasons by which such a placement occurred. And in order to address such allegations, it should be apparent that documents and information properly protected from disclosure by the state secrets privilege are squarely at issue because any procedural due process challenge demands an analysis of the specific processes provided to a person, the specific information about a person that was considered as part of those processes, and the particular information underlying the Government’s concerns about a person that would be at issue when considering proposed substitute procedures. Indeed, the disclosure of any such information concerning Plaintiff is precisely what this lawsuit seeks…

Now remember what Obama’s publicly stated position has always been on this. He has said that he favors only the narrow version of the SSP, which is used only as a specific evidentiary challenge. In that version, the government would argue only against releasing a specific piece of evidence in court if they believe its release would harm national security. The broad version of the SSP, the one he claims to be opposed to, is what is being argued here. It seeks to dismiss any case that involves classified information. But the judge in this case rejected that version and wants to actually look at the evidence to see whether its use in court would actually harm national security and whether it justifies putting this person (an American citizen, remember) on the no-fly list. Gosztola sums it up this way:

In other words, the documents that would show that Mohamed had his rights violated are “state secrets.” Mohamed cannot bring a challenge against the role the US government played in his treatment because the documents he needs to win at trial are classified. So, the US government can keep all the relevant records highly classified so it can operate a Kafkaesque bureaucratic No Fly List and, when that process infringes upon a citizen’s liberty to travel, citizens have little to no recourse outside of requesting redress from the very opaque bureaucracy that placed them on the list in the first place.

This was exactly what Obama criticized when the Bush administration used the broad version of the SSP. It’s exactly what he promised not to do. And it’s exactly what he has continued to do in every single case during his own administration. If successful, it would all but destroy the checks and balances found in the Constitution, eliminating the courts from the equation entirely and insulating the executive branch from liability for any actions taken in pursuit of “national security.”

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