It’s Not a State Secret if It’s Already Been Disclosed

The Bush administration has been dealt another setback in litigation over its NSA surveillance program:

In this particular case, one of the plaintiffs, the Al-Haramain Islamic Foundation, claims that the government froze its assets during an investigation prompted by a warrantless wiretap, a claim that is verified by classified documentation (referred to in the judge’s decision as the Sealed Document) inadvertently given to the plaintiff. The government claims that national security would be threatened if the government confirms or denies the assertion that Al-Haramain was the subject of wireless eavesdropping. The basis for government’s argument extends from the belief that a suspect who knows himself to be a target of government surveillance could “change his pattern of behavior, jepordizing the ability to collection intelligence information.” The judge points out that the government’s argument is irrelevant in this case, because “the government already inadvertently disclosed the Sealed Document to plaintiffs, thus alerting the individuals or organizations mentioned in the document that their communications have been intercepted in the past.”

The government also claimed that, should the lawsuit be allowed to move forward, national security would be at risk, simply because certain details of the case could potentially be accumulated to reveal additional details. Known as the “mosaic” theory, the government’s argument is “that any disclosure of any information related to the Surveillance Program or the Sealed Document would tend to allow enemies to discern, and therefore avoid, the means by which surveillance takes place under the program.” The judge rejected this assertion, because he does not think that the case will necessitate public disclosure of “information regarding the al Qaeda threat” or “non-public details of the Surveillance Program.”

Any terrorist stupid enough not to worry about the U.S. government eavesdropping on him is probably stupid enough not to be a serious threat. And you could make the same argument about any surveillance program.

Indeed, that’s why Congress set up FISA in the first place. They wanted to give the executive branch a leak-proof forum for getting judicial oversight of its top-secret surveillance activities. If the Bush administration had gone through the FISA process, or lobbied Congress to change the FISA process to accommodate their new program, they wouldn’t be in this situation. But instead, they chose to simply ignore the law and conduct their illegal surveillance program without judicial oversight. The chickens are now coming home to roost.

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