President Obama promised to usher in a new era of government transparency when
he was sworn into office nine months ago.
On January 21, Obama signed an executive order
instructing all federal agencies and departments to “adopt a presumption
in favor” of Freedom of Information Act (FOIA) requests and promised to
make the federal government more transparent.
“The government should not keep information confidential merely because
public officials might be embarrassed by disclosure, because errors and failures
might be revealed or because of speculative or abstract fears,” Obama’s
order said. “In responding to requests under the FOIA, executive branch
agencies should act promptly and in a spirit of cooperation, recognizing that
such agencies are servants of the public.”
But since that time, the Obama administration has sought to conceal information
in several high-profile court cases, in an effort that civil libertarians say
amounts to covering up crimes committed by the Bush administration.
Last week, in a federal courthouse in New York, Obama’s Justice Department
attorneys again argued in favor of secrecy. The case involved 23 lawyers representing
detainees at Guantánamo Bay who alleged in court papers
that they were targets of the Bush administration’s so-called Terrorist Surveillance
Program(TSP), an initiative operated by the National Security Agency (NSA) that
Obama called “unlawful and unconstitutional” during his presidential
campaign in 2007.
“Our work with our clients may have been deeply compromised by illegal
surveillance carried out by the last administration,” said Shayana Kadidal,
senior managing attorney of the Center for Constitutional Rights (CCR) Guantánamo
Global Justice Initiative, a civil rights organization. “The new administration
has no legal basis for refusing to come clean about any violations of attorney-client
privilege by the NSA.”
Kadidal told Truthout that he could not describe details of the specific incidents
that led CCR attorneys to suspect that their privileged communications were
intercepted by the government. The plaintiffs in the case argue that listening
in on the phone calls of lawyers who represent Guantánamo prisoners is a violation
of attorney-client privilege. Kadidal could not go into detail because he wanted
to avoid violating the same privilege.
The lawsuit centers around the Bush administration’s surveillance programs,
specifically the TSP, which was revealed by The New York Times in 2005. In defending
the warrantless spying activities conducted by the NSA, the Bush administration
said the TSP only allowed surveillance of electronic communications when one
party is outside the United States and one party is suspected of being “a
member or agent of al Qaeda or an associated terrorist organization,” according
to a letter from
then-Attorney General Alberto Gonzalez.
The TSP was not administered or overseen by the special court set up by Congress
to review secret surveillance activities. The Foreign Intelligence Surveillance
Act (FISA) established the court as a check on the executive branch’s power.
Under the TSP, the special FISA court was sidestepped, with shift supervisors
at NSA – not judges in a courthouse – deciding who was an appropriate target
Whistleblowers have reported widespread abuse of this power. According to reports and documents, the NSA spied on UN Security Council members in the run-up to the Iraq
war. Whistleblowers say the NSA monitored the personal calls of aid workers,
journalists and active-duty soldiers serving in Iraq (video). Technology expert Mark Klein says that the NSA was collecting massive amounts of data traffic that passed
through a major data hub in San Francisco.
Lawyers for the prisoners held after the 9/11 attacks have particular reason
to be concerned about surveillance, because their communications fit perfectly
with targets specified by the Bush administration. Their clients are suspected
terrorists or are associated with suspected terrorists calling into the United
In April 2008, The New York Times quoted two unnamed Bush Justice Department officials who addressed the possibility
of surveillance of lawyers representing suspected terrorists or related individuals:
Two senior Justice Department officials, speaking on the condition of anonymity
because the department has not authorized them to discuss the issue with reporters,
said they knew of only a handful of terrorism cases since the Sept. 11 attacks
in which the government might have monitored lawyer-client conversations. They
said they understood that the intercepted conversations were not shared with
front-line prosecutors in an effort to be certain that there was no violation
of attorney-client privilege.
“If a terrorist suspect living in a foreign country is calling into the
United States and all of his calls are being monitored, the calls to his lawyers
here might be intercepted, as well,” one of the officials said. “It’
s not as if we’ re targeting the lawyer for surveillance. It’ s not like we’
re eager to violate lawyer-client privilege. The lawyer is just one of the people
whose calls from the suspect are being swept up.”
Thomas Wilner, an attorney at Shearman & Sterling LLP, is the lead plaintiff
in the case. He has represented multiple Kuwaiti citizens detained at Guantánamo.
In his declaration, Wilner says that government officials have twice informed
him that he is “probably the subject of government surveillance.”
Wilner and 22 other attorneys are suing to try and force the NSA to turn over
documents pertaining to any surveillance activities against them. They argue
that any documents which demonstrate past illegal spying should not be concealed
by the Obama administration.
In their complaint, the Guantánamo lawyers point out that written responses
to questions posed
by Congress regarding the spying program show that the Bush administration “acknowledged
that Guantánamo lawyers may be subject to TSP surveillance, and [the Bush administration]
has argued that it has the right to target them.” In the document, the
Bush Department of Justice states:
Although the program does not specifically target the communications
of attorneys or physicians, calls involving such persons would not be categorically
excluded from interception if they met these criteria.
Kathryn Sabbeth, an assistant professor of law at the University of North Carolina
who argued on behalf of the 23 attorneys, slammed the Obama administration for
refusing to take a position on the legality of the spy programs of the Bush
“No argument could be made that targeting American lawyers on American
soil to obtain information about their clients was legal, and indeed when counsel
for the government was pressed for an explanation he offered none,” Sabbeth
said after last week’s court hearing.
The NSA has refused to confirm or deny the existence of the documents detailing
the surveillance of lawyers who represent prisoners of the so-called “war
on terror,” on the grounds that knowledge of the existence or nonexistence
of the documents is itself a classified piece of information.
“Defendants can neither admit nor deny whether they have possession and
control of records responsive to certain other portions of plaintiffs’ request,
because to do so would require the disclosure of classified information, or
could tend to reveal classified information,” the NSA and Department of
Justice state repeatedly in their response to the complaint.
Thomas Bondy, a Justice Department attorney, told US District Court Judge Denise
Cote that the act of informing people whether records exist related to surveillance
activity targeting them would give information to potential enemies.
“Anyone who asks that question [do records exist?] gets the same answer:
We’re not saying yes and we’re not saying no,” Bondy said in court, adding,
“if we ever answered this question for anyone, inferences can be made when
we do not answer.”
The defense prevailed in district court, defending their “Glomar response,” a technique
for combating FOIA requests on national security grounds. It was first used
to conceal the CIA’s involvement in the construction of the Glomar Explorer,
a deep-sea ship designed to covertly raise a sunken Soviet nuclear submarine.
The Glomar response has never been ruled on by the Supreme Court, has very
limited case history and has never been ruled on by the 2nd Circuit Court of
Appeals, where the fate of Wilner v. NSA will be decided
The Glomar response was one of the many legal tactics that the Bush/Cheney
administration used to maintain an unprecedented level of secrecy and executive
power. Civil libertarians hoped the Obama administration would abandon this
policy, but so far they have been disappointed.
Constitutional scholars express regret that the Obama administration and Congress
have failed to hold the Bush administration accountable.
“I’m frustrated that the Obama administration and Congress have not moved
more quickly to establish accountability for Bush administration programs that
were likely unlawful,” Ohio State University law professor and constitutional
law scholar Peter Shane told Truthout. “The Bush administration has been
history for 10 months, and it is still not clear what path we are on to clarify
the historical record on what the Bush administration did or did not do with
regard to civil liberties. I wish there were less resistance to lawsuits that
are trying to vindicate people’s rights in these matters.”