National Security: The Last Refuge of Scoundrels

If the Obama Justice Department’s legal doctrine is allowed to stand, there will be absolutely no way of holding government officials civilly or criminally accountable for violating the rights of American citizens, short of a foreign power conquering the United States and putting its officials on trial. Barring a new Nuremberg trial, the officials of the United States government are above the law when it comes to “National Security.”

That’s the necessary implication of the Justice Department’s call to dismiss Jewel v. National Security Agency, a lawsuit on behalf of Americans who were subjected to warrantless–and hence illegal–surveillance by the National Security Agency.

The administration, in calling for dismissal, advanced two morally repellent arguments.

First, it used the “state secrets” argument: that any such lawsuit would compromise the “sources and methods” of the NSA, and in particular whether the agency had relationships with any particular telecommunications company (a disclosure, in particular, which would cause “exceptional harm to national security”). The claims of the plaintiffs, it said, “would require or risk the disclosure of information properly protected by the DNI’s assertion of the state secrets privilege.” The “very subject matter” of the lawsuit “would inherently risk or require the disclosure of state secrets.” (Thanks to Glen Greenwald, by the way, for posting the document with the money quotes highlighted.)

Second, the Justice Department claimed sovereign immunity for the government.

The first argument is, of course, complete and utter nonsense. The NSA’s technical capabilities for surveillance of domestic communications are notorious matters of fact, as is its pattern of relationships with AT&T and other telecom companies. So translated out of legalese, the argument is simply that a lawsuit would embarrass some bureaucrats.

The second argument is utterly pernicious. It means, in essence, that government officials cannot legally be held accountable for violating our liberties, because–wait for it!–they’re government officials.

Think about that for a moment. If the government cannot be held liable for violating constitutionally defined rights, then what mechanism exists for enforcing those rights? Apparently, not much–aside from another country conquering the United States and putting its officials on trial. You know, like the Nuremberg trials.

That claim, the bald assertion that the government can’t be called to account for violating our rights because IT’S THE GOVERNMENT, rivals Nixon’s claim that “if the President does it, it’s not illegal.” Such sheer executive chutzpah hasn’t been matched since Charles I met writs of habeas corpus with the reply that the prisoner “is being held at the King’s good pleasure.”

A high school civics textbook parody by Doug Kinney, published in National Lampoon back in the 1970s, mentioned that the Bill of Rights was “kept around mainly as an example of good penmanship.” That wasn’t much of a joke, even back then. Today, things are even worse. We’ve got a Bill of Rights which is unenforceable because exposing the cockroaches of the police state to the light of day might be bad for “national security.” That’s about as bad as the insurance policy on Monty Python, with the clause in fine print reading “No claim made by you will be paid.”

The accretion of war powers around the office of President, over the past century or so, has resulted in legal claims resembling the prerogatives of a Stuart monarch. The Obama administration seems to have reined itself in a bit compared to Bush; it isn’t matching Cheney, Yoo et al in the sheer grandiosity of claims entailed in “Unitary Executive” doctrine. But anyone who expected a serious scaling back of executive national security powers, comparable to what happened under the post-Watergate Church Committee, is probably in for a disappointment.

There are two lessons to be drawn: First, the upward ratcheting of executive “national security” powers, unfortunately, is very much a bipartisan phenomenon. And second, under Democrats as well as Republicans, “National Security” is the last refuge of scoundrels.