The Obama administration’s Justice Department took a swing at the rights of all Americans this week.

In February, the ACLU and other groups filed a lawsuit on behalf of Southern California Muslims who were subjected to unlawful FBI surveillance on the basis of their religion. Between 2006 and 2007, the FBI paid an Irvine man to misrepresent his identity and infiltrate several mainstream mosques in order to collect the personal information of hundreds of Muslim Americans living in the area.
On Monday, Attorney General Eric Holder asserted that the lawsuit should be dismissed based on the “state secrets” privilege. According to the government, whether or not the FBI violated the First Amendment right of American citizens to freely practice their religion is a state secret.
Students of the Bush administration should remember the state secrets privilege from its frequent application in covering up human rights abuses. Lawsuits filed against the system of CIA black sites where suspects of terrorism-- some of whom were innocent-- were detained and tortured, as well as against the NSA’s warrantless wiretapping program, were both dismissed using the state secrets doctrine.
During his campaign, President Obama attacked these abuses and actually promised to reform the state secrets program. But talk is cheap. Since taking office Obama has defended several of the prior administration’s legal positions on state secrets.
This week, however, brought a new low in the invidious history of the state secrets privilege: the administration asserted the privilege in an attempt to dismiss a lawsuit brought by United States citizens, challenging the constitutionality of an operation, conducted by a domestic law enforcement agency on American soil. In fact, the government says, it’s not only a state secret to disclose who FBI agents surveilled. It’s also a secret whom they weren’t surveilling.
This view of the state secrets doctrine represents an assault on our constitutional system. If the government’s assertion of the state secrets privilege in this case were accepted, then an FBI program to arrest American citizens on the basis of their race (or a government-backed campaign to detain its political opponents) would be immunized from constitutional challenge in the courts -- as long as the government says that doing so would protect national security. Closing the courthouse door, as the government sought to do on Monday, would effectively place the FBI’s conduct beyond judicial review.
The framers of the Constitution created three co-equal branches of government to protect against precisely this kind of abuse of power. If the Obama administration’s view is upheld, the courts will be closed to citizens who seek to stop the government from violating their constitutional rights right here in the United States.
Let’s hope that the federal courts put a stop to these abuses-- starting with this case.
Ahilan T. Arulanantham is the Deputy Legal Director of the ACLU of Southern California.