Obama Secrecy Watch II: A State Secrets Affidavit Straight from the Bush Era

When Attorney General Eric Holder invoked the “state secrets” privilege to quash a lawsuit alleging illegal National Security Agency spying last Friday night, his department’s lawyers sounded a lot like those who worked for President George W. Bush. In fact, they justified the action by filing an affidavit from President Obama’s director of national intelligence that is nearly identical to one filed by President Bush’s intelligence director two years ago.

The strikingly similar affidavit—making the same arguments in the almost exactly the same language—is among the strongest examples yet of how Obama administration officials are adopting Bush-era secrecy positions in major national security cases.

Holder’s move came in the case of Shubert v. Obama, a lawsuit filed in 2006 by four residents of Brooklyn, New York. They allege that their overseas phone calls were illegally intercepted by the NSA as part of a massive “dragnet” of warrantless surveillance ordered by Bush after the Sept. 11 attacks.

“It is my judgment that sensitive state secrets are so central to the subject matter of the litigation that any attempt to proceed in the case will …risk exceptionally grave damage to the national security of the United States,” national intelligence director Dennis Blair wrote in an affidavit submitted by Justice Department lawyers on Oct. 30. If that language sounded familiar to the court, it’s because it was: “It is my judgment that sensitive state secrets are so central to the subject matter of the litigation that any attempt to proceed in the case will…risk exceptionally grave damage to the national security of the United States,” wrote J. Michael McConnell, Bush’s intel chief, in an affidavit filed on May 25, 2007, in the same case.

“This is Bush 2. It’s Bush the sequel,” said Ilann Maazel, the lawyer for the Shubert plaintiffs, after reading the Justice Department’s motion and the accompanying affidavit by Blair. “They [the Obama officials] are saying the same thing: ‘Were not going to tell you what our spying program is—and even if it’s illegal, you can’t stop it.’” Asked for comment, Wendy Morigi, a spokeswoman for Blair, said: “Given that the plaintiffs' allegations have not changed since the privilege was asserted two years ago, it is not surprising that the declarations are very similar.”

The McConnell affidavit had originally been filed when the Justice Department (then headed by Attorney General Alberto Gonzales) first invoked state secrets in the Shubert case, arguing there was no way any aspect of the lawsuit could be litigated without jeopardizing national security. But last spring, a federal judge in San Francisco invited the Justice Department to revisit its position. He did so after a three-judge panel of the 9th Circuit Court of Appeals rejected as overly broad a similar government claim of state secrets in another lawsuit. That case, known as Mohammed v. Jeppesen Dataplan, was filed by former detainees against a Boeing subsidiary that allegedly participated in the CIA’s “extraordinary rendition” of terror suspects to foreign countries that practice torture. In essence, the appellate court concluded that if the Justice Department wanted to invoke state secrets to prevent matters from being heard by a federal court, it must do so regarding specific pieces of evidence only—and could not use the state-secrets privilege as a blanket claim to quash the entire lawsuit before it even gets off the ground.

But despite a new policy, announced just last month, that was supposed to limit the use of the state-secrets privilege, Holder (after what he called “a careful and thorough review process”) chose to stick with the same position as that taken by the Bush administration.What’s more, the Justice Department didn’t even bother changing the language of many of its arguments.

An intelligence community official today suggested that much of this may be no more than legalese: certain legal questions before a court trigger certain kinds of legalistic responses.

Even so, the parallels are arresting. For example, Blair in his affidavit contended that there was no way that the NSA could ever confirm whether or not it had targeted the communications of the Brooklyn plaintiffs—nor could it discuss whether (as is alleged in the lawsuit) the electronic spy agency had been assisted in its surveillance by big telecommunications firms.

“Confirming or denying such allegations, again, would reveal to foreign adversaries whether or not the NSA utilizes particular intelligence sources and methods and, thus, would either compromise actual sources and methods or disclose that the NSA does not utilize a particular source or method,” Blair wrote on page nine of his 11-page affidavit.

That’s what Bush’s DNI McConnell said two years ago: “Confirming or denying such allegations would reveal to foreign adversaries whether or not the NSA utilizes particular intelligence sources and methods and, thus, either compromise actual sources and methods or disclose that the NSA does not utilize a particular source or method,” McConnell wrote on page eight of his affidavit.

There are, to be sure, some differences in the Blair and McConnell affidavits. McConnell cited allegations in the lawsuit that named two companies—AT&T and Verizon—that were supposed to have assisted the NSA.  Blair summarizes the allegations in the lawsuit more blandly, alluding to unnamed “telecommunications companies.” Blair’s affidavit states that “information concerning the specific nature of the al Qaeda terrorist threat” was among the “state secrets” the government couldn’t discuss; McConnell’s affidavit made no such assertion.

But both men said they went through the same deliberative process in reaching their conclusion that no court should hear the claims of illegal spying made in the Shubert lawsuit. “After careful and personal consideration of the matter, based upon my own knowledge and information obtained in the course of my official duties,” Blair writes on page five of his affidavit, he had reached the conclusion that information central to the case would damage national security. McConnell too, on page four of his affidavit, said he had reached his conclusion “after careful and actual personal consideration of the matter, based upon my own knowledge and information obtained in the course of my official duties.” (Both men also filed classified affidavits with the court that they suggest shed more light on how they reached their identical conclusions.)

Of course none of this should be that surprising—even though Obama and Holder had both sharply criticized President Bush’s warrantless surveillance program that is at the heart of the lawsuit. (See Obama comments here; Holder comments here.) When he filed his affidavit defending the terrorist-surveillance program two years ago, McConnell said he relied on assertions about NSA activities in a separate affidavit filed in the case by the director of the NSA, Lt. Gen. Keith B. Alexander. And when Blair filed his affidavit last week, whom did he rely on? The very same Lt. Gen. Keith B. Alexander, who is still in the same job as NSA director 10 months into the Obama administration.