The FBI Claims a Constitutional Right to Lie to the Courts

The FBI has claimed a right to lie to courts, not just withhold state secrets. This is amazingly brazen. It's also incredibly stupid, but I'll get to that in a second. The court's response:

The Government’s in camera submission raises a very disturbing issue. The Government previously provided false and misleading information to the Court. The Government represented to the Court in pleadings, declarations, and briefs that it had searched its databases and found only a limited number of documents responsive to Plaintiffs’ FOIA request and that a significant amount of information within those documents was outside the scope of Plaintiffs’ FOIA request. The Government’s representations were then, and remain today, blatantly false. As the Government’s in camera submission makes clear, the Government located a significant number of documents that were responsive to Plaintiffs’ FOIA request. Virtually all of the information within those documents is inside the scope of Plaintiffs’ FOIA request. The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.

The United States Constitution entrusts the Judiciary with the power to determine compliance with the law. It is impossible for the Court to determine compliance with the law and to protect the public from Government misconduct if the Government misleads the Court. The Court simply cannot perform its constitutional function if the Government does not tell the truth....

I'm finishing up a seminar paper titled The New State Secrets Doctrine: How The Referees Became Offensive Linemen. The thesis of the paper is that the judiciary has, since 9/11, been using the State Secrets Doctrine to actively block for the executive branch, allowing the President to run his desired "game plan" in the War on Terror, by preventing any accountability. (Yeah, I had some fun with the sports analogy in this one.)

In the warrantless surveillance cases, the court has been able to use standing doctrine to say that because the programs are actually secret, the plaintiff cannot know they are a target, and thus do not have standing to sue. (For the non-lawyers, standing is the doctrine that says that you may only litigate a claim in which you have a stake - there has to be a real "case or controversy." You can't just arbitrarily challenge a law or policy. If a plaintiff does not have standing, the case is dismissed.) This is an obvious Catch-22, given the lack of accountability (created by the secrecy) is what is being challenged. However, standing doctrine often works to detach rights from remedies, so though it seems unfair, is at least plausible in law.

What makes it all more amazing are the extraordinary rendition cases. These two cases accept the radical argument put forth by both the Bush and Obama administrations, that the state secrets doctrine can be used to dismiss entire cases. The state secrets doctrine, after a 2005 Supreme Court case, has come to be interpreted in two parts: 1) A bar to litigation outright, when the "very subject matter" of the case is a state secret (canonical example: suing for breach of a secret espionage contract) and 2) An evidentiary privilege allowing the government to withhold evidence the exposure of which would harm national security. What the Administrations have claimed, and these two courts have held, is basically that the two parts can be merged, and if the litigation poses too much of a risk of exposing state secrets (which, strangely enough, is always), it can be dismissed before the government has even responded. In the later case, Mohamed v. Jeppesen, the Ninth Circuit sitting en banc, reversed the panel decision. The panel decision included this line that really gets to the heart of the matter:

According to the government's theory, the judiciary should effectively cordon off all secret government actions from judicial scrutiny, immunizing the CIA and its partners from the demands and limits of the law.
Of course, as that panel was reversed, the judiciary has in fact abdicated their oversight role. This case does have a cert petition pending, so the Supreme Court may yet hear it.

So back to my original point. The government's got a pretty good thing going on. They can, at the moment, declare nearly anything secret, and have the entire litigation dismissed as a result. Free pass. Of course, what do they do? Take it *so* far that the judiciary will have to push back. Remember:

It is impossible for the Court to determine compliance with the law and to protect the public from Government misconduct if the Government misleads the Court. The Court simply cannot perform its constitutional function if the Government does not tell the truth....
Who honestly thought it was a good idea to tell a court they had a right to lie to it? Anyway, I guess it's a good thing. I'm happy they're idiots - maybe it'll end up restoring a little sanity to the separation of powers post-9/11.