The federal government’s use of secrecy and deception in the name of national security reached a new low last week, when Obama administration lawyers argued that they had the right to lie to a federal court in the name of national security by denying even the fact that they were keeping secret records about a group of Southern California residents.   While the Court excoriated the government for lying, the Obama administration has defended its actions, raising fears that it will continue the practice in other cases.  Read the Amended Order
The statements arose in the context of a lawsuit brought by several peaceful, law-abiding Southern California Muslims.  They appear to have been the target of government surveillance for years, simply because of their religion.  They sought to learn if the FBI had been targeting them for engaging in peaceful, constitutionally-protected activity.  The individuals, represented by the ACLU of Southern California, filed a Freedom of Information Act (FOIA) lawsuit five years ago for records about the FBI’s surveillance of them.   Read the Complaint
After the groups filed suit, the government released records about them which revealed a disturbing trend -- the FBI had extensively surveilled and documented these groups’ peaceful activities.  For example, the FBI had surveilled their participation in the immigration reform movement, monitored their fundraising activities to support earthquake relief in India, and documented their public statements advocating nonviolence.  While these documents revealed a troubling pattern of FBI surveillance, what they kept hidden seemed equally troubling – large portions of many of the documents were simply blacked out.  Therefore, the ACLU asked the Court to review the complete documents in order to determine if further information could be released.
In response, the government took the remarkable step of lying about the documents they had kept secret -- not only to the Plaintiffs, but also to the Court.  The FBI submitted an extensive brief and declaration by a high-ranking FBI official that, according to the Court, contained “blatantly false” statements about the nature and number of documents that the FBI had kept secret, including lies about whether information had been kept secret and the reasons for that secrecy.  The judge discovered this only because the ACLU had asked him to independently review the FBI’s decision to keep the documents about them secret.
Amazingly, after the Court confronted the government about the lies, the government defended its conduct, claiming not only the authority to keep the information secret, but also to lie – to both the public and the courts - even about the fact that it was keeping the information secret.  Although all of the information at issue is now over five years old, and involves a set of Americans living in Southern California none of whom have ever been arrested, let alone convicted, of any crime in this country, the Obama administration still asserts that disclosing even the fact that there are further documents about these individuals will threaten the national security.
While the court strongly rebuked the government for its conduct, the Obama administration has continued to defend it – going so far as to issue a public statement from the Department of Justice “strongly” disagreeing “with the characterization that the court was misled.”   While we have come to expect such double-speak in government responses, its failure to admit wrongdoing is particularly disturbing in this case, because the district court’s opinion creates no precedent that binds the government in other cases.  As a result, we have no reason to believe that the government is not engaged in similar conduct in cases throughout the nation, or that it will change its practice in response to the court’s order.
Nine years ago, in the wake of the 9/11 attacks, a federal court stated that “democracies die behind closed doors,” and ruled in that case that the Bush administration could not hold secret deportation hearings based only on the assertion that the person subject to deportation was of “special interest.” As that court explained, “a true democracy is one that operates on faith — faith that government officials are forthcoming and honest, and faith that informed citizens will arrive at logical conclusions.”  Nearly 10 years later, it's sad that an administration that promised a new era of open government has chosen to close its doors by lying not only to the people, but even to the courts designed to protect us from abuses of power.