Bush-Era Leaks Were Dangerous After All

Attorney General Eric Holder yesterday invoked the state secrets privilege in connection with a case titled Shubert, et al. v. Barack Obama, et al.. The Shubert case is pending in federal district court in San Francisco. Assuming the court agrees with the Obama administration’s position, the case will be dismissed on the ground that it cannot proceed without a danger that vitally important national security secrets will be revealed.

Many commentators have noted that this is one more instance where the Obama administration, now that it is in possession of the facts and charged with responsibility for the nation’s security, has acted in full concert with much-reviled policies of the Bush administration. That’s a valid point, and Holder’s press release on the subject, which you can read here, is almost humorous in its labored attempt to create the impression that use of the state secrets privilege by the Obama administration is somehow different from the identical use of the identical privilege by the previous administration. Holder even invokes “transparency,” which seems ludicrous in light of the broader record of the Obama administration and the nature of the privilege itself. Actually, the Obama administration’s motion to dismiss based on the state secrets privilege is a renewal of a motion the Bush administration originally brought in 2007.

But the administration’s decision merits a closer look because of the nature of the Shubert case. In that action, the plaintiffs, purporting to represent a class of aggrieved parties, allege that “the Bush administration engaged in wholesale dragnet surveillance of ordinary Americans in which they were unjustly caught because they regularly made phone calls and sent emails to individuals outside the U.S…..” Plaintiffs are referring to the National Security Agency’s Terrorist Surveillance Program, which became a flash point for the Left’s attacks on the Bush administration after its existence was leaked to the New York Times.

We and many others denounced that leak, and the Times’ decision to publish information about the Terrorist Surveillance Program, on the grounds that they were illegal and were dangerous to national security. Sadly, neither the leakers nor the Times reporters and editors who blew the program’s secrecy ever went to jail. On the contrary, Times reporters James Risen and Eric Lichtblau won a Pulitzer Prize for disclosing the existence and nature of the Terrorist Surveillance Program to our enemies.

In Shubert, the plaintiffs seek to recover damages for what they allege was illegal surveillance of them carried out under the NSA’s program. The Obama administration’s submission in support of its motion to dismiss the case makes clear that the Bush administration (and we, for that matter) were right all along about the importance of the program and the potential for injury to our national security posed by leaks about it. Here are some of the factual allegations in an affidavit submitted in support of the motion by Director of National Intelligence Dennis Blair. You can read the declaration in its entirety here:

3. …[I]t 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 substantially risk the disclosure of classified privileged national security information described herein and will therefore risk exceptionally grave damage to the national security of the United States. …

13. First, I am asserting privilege over information that would reveal whether particular individuals, including the named plaintiffs in this lawsuit, have been subject to the alleged NSA intelligence activities. Disclosure of such information would cause exceptionally grave damage to the national security. The NSA cannot publicly confirm or deny whether any particular individual is subject to surveillance activities. …

14. Second, I am also asserting privilege over any other facts concerning NSA surveillance activities, sources, or methods that may relate to or be necessary to adjudicate the plaintiffs’ claims, including, but not limited to, allegations that the NSA, with the assistance of telecommunications companies, has indiscriminately intercepted the content and obtained large quantities of communications records as part of the Program authorized by the President after 9/11. … As noted above, my privilege assertion encompasses (1) facts concerning the operation of the now-defunct Terrorist Surveillance Program, including any facts needed to demonstrate that the TSP was limited to the interception of the content of one-end foreign communications reasonably believed to involve a member or agent of al Qaeda or an affiliated terrorist organization, and that the NSA does not otherwise conduct a dragnet of conduct surveillance as the plaintiffs allege; and, to the extent relevant, (2) information concerning whether the NSA obtains communication transactional records from the telecommunication companies.

15. As the NSA indicates, … the NSA’s collection of the content of communications under the TSP was directed at international communications in which a participant was reasonably believed to be associated with al Qaeda or an affiliated organization. Thus, as the Government has previously stated, plaintiffs’ allegation that the NSA has indiscriminately collected the content of millions of communications sent or received by people inside the United States after 9/11 under the TSP is false. I concur with the NSA that to the extent it must demonstrate in this case that the TSP was not the content dragnet plaintiffs allege, or demonstrate that the NSA has not otherwise engaged in the alleged content dragnet, highly classified NSA intelligence sources and methods about the operation of the TSP and other NSA intelligence activities would be disclosed or at risk of disclosure which would cause exceptionally grave harm to national security.

Note the propositions that are stated or implied by Admiral Blair’s declaration and by the Obama administration’s motion to dismiss: 1) The NSA’s Terrorist Surveillance Program was vital to our national security. 2) The TSP was carefully targeted, as the Bush administration maintained all along, at international communications that involved a person reasonably believed to be a member or agent of al Qaeda. 3) The Bush administration could not defend itself in detail against the false claims that were made about the TSP because doing so would have disclosed vitally important secrets about our means and methods of fighting terrorists. 4) Leaks about the NSA program threatened to compromise a program that was vital to our national security. 5) While the TSP in its original form is now “defunct,” the NSA’s current programs–referred to as “other NSA intelligence activities” by Admiral Blair–are so closely related (I suspect they are virtually identical) that disclosures about the TSP would still imperil our security.

The only possible conclusion, I think, is that Barack Obama (who criticized the NSA program during the campaign), James Risen, Eric Lichtblau, Bill Keller, the Pulitzer Prize committee and countless other liberals owe the Bush administration an apology.

Thanks to Washington’s best reporter, Jake Tapper, who tracked down the administration’s filings in the Shubert case.

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