A chilling court decision unsealed at the end of April by a federal judge in California’s Central District reveals that the Obama administration is not only prepared to take advantage of the lies of the Bush administration, but is willing to up the ante. In a case that involved extensive surveillance of Muslim community groups and leaders, the Obama administration has now argued that the government not only can lie about its surveillance activities to American citizens but can, in turn, lie to federal judges when “national security” is involved. And, despite his strongly worded April 27 decision censuring the government for lying, U.S. District Judge Cormac J. Carney ultimately ruled that the government can both withhold the requested surveillance documents and escape censure for lying.
Carney’s ruling, which has gone under the radar of most mainstream and independent media (with a lone 420-word editorial in the Los Angeles Timesbeing the only mainstream coverage), chastises the U.S. government. But, that’s as far as Carney would go. The government will not be charged with contempt of court or perjury nor will it face any other kind of official sanction. In effect, the government can lie and conduct whatever kinds of surveillance it wants without accountability or repercussions for overreach.
The origins of the current case, Islamic Shura Council of Southern California et al. v. the Federal Bureau of Investigation, et al., stretch back to 2006 and involve six Muslim organizations – the Islamic Shura Council of Southern California, the Council on American Islamic Relations-California (CAIR), the Islamic Center of San Gabriel Valley, the Islamic Center of Hawthorne, the West Coast Islamic Center, the Human Assistance and Development International, Inc.- and five Muslim community leaders. These men and groups were among the first Muslim Americans to meet and share information with the FBI after 9/11, and include individuals like Mohammed Abdul Aleem, who served as a government witness for the U.S. Department of Justice in a 2004 terrorism case in Idaho.
However, by May 2006, the plaintiffs began to feel increasingly that they themselves had become the targets of extensive government surveillance and so filed a joint request for their FBI files under the Freedom of Information Act (FOIA) for any records detailing their monitoring or surveillance. After almost a full year had elapsed, on April 27, 2007, the government told nine of the plaintiffs that they had “no records responsive” to their request, and, in June 2007, the FBI sent a single redacted page to CAIR and three redacted pages to Hussam Ayloush, CAIR’s Executive Director, and a plaintiff. Unconvinced by this report, the plaintiffs brought a lawsuit against the government, challenging the adequacy of the FBI’s search.
In light of the lawsuit, the FBI conducted new searches and produced some 120 pages of documents that they heavily redacted or withheld entirely because they were claimed to be “outside the scope” of the FOIA request. This – it would later turn out – was the government’s first instance of lying to the court. They had, of course, already lied to the plaintiffs in their previous correspondence with them which, as Judge Carney cited in his decision, was a curious tactic to take – as, under FOIA, they could have simply identified the “statutory and factual basis” for not releasing certain documents and, so, would have been well within current legal bounds for not issuing requested documents.
Faced with cross-motions by the government and the plaintiffs in the case, in April 2009 the Court ordered an in camera review of the FBI’s searches (with only the government present) in order to determine the “propriety” of the FBI’s “outside the scope” determinations. Shortly after this order was given, the government – which had now shifted from the Bush administration to the Obama administration – revealed to the court that it actually had identified other “responsive” documents but had never disclosed them to the court or to the plaintiffs. It was at this juncture, under Obama’s watch, that the government asserted that it actually had the right to lie to the court because of national security.
Realizing that the government had, as Judge Carney’s decision later worded it, “provided false and misleading information to the Court,” Carney ordered two in camera hearings, again with only the government present, after which he issued a sealed order in June 2009. But the government immediately appealed this order and sought an emergency motion to stay the decision. In its ruling, the appellate court supported government secrecy. Judge Carney’s decision – amended as per the appellate court’s order to eliminate all statements which the government designated too sensitive – finally saw the light of day two years later, at the end of this April.
Citing the case of United States v. Richard M. Nixon, to explain why “the very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts,” Carney rebuked the government’s attempts to claim that its representations to the Court were not “technically false,” writing that the government “cannot negotiate the truth with the Court” nor “under any circumstance affirmatively mislead the Court.”
He went on to write that “the Government argues that there are times when the interests of national security require the Government to mislead the Court. The Court strongly disagrees. The Government’s duty of honesty to the Court can never be excused, no matter what the circumstance.”
But despite these fine sentiments, Carney (who is a George W. Bush appointee) was ultimately unwilling to impose any kind of penalty or even order that the requested FOIA documents be released, leaving the U.S. government with nothing to stop it from lying in court in the future. Under the basic rules of court, the actions of the FBI’s lawyer, Marcia K. Sowles, appear to be clearly unethical; yet Judge Carney did not refer Ms. Sowles to a state bar for, at the very minimum, a disciplinary investigation. By failing to hold the government in any way accountable for lying, Judge Carney has succeeded only in ultimately bolstering the government’s confidence in acting with impunity.
The government itself hinted at the new level of unfettered reach they now want in one section of their appellate brief that was not under seal, writing that the courts need to “give special deference to the Executive Branch when it invokes national security concerns.”
That our government, four decades after the Pentagon Papers, is able to lie in a federal court, get caught and have no price to pay speaks volumes about the state of justice in the United States right now. While there are many things that shock the conscience about how this case played itself out, what might be most shocking is how it reveals the U.S. government’s current understanding of the rule of law. As President Nixon once did, the current administration appears to see itself above the law. And despite issuing a strong rebuke in his decision, Judge Carney has given a green light both for the government’s lying and for its invasive surveillance.
Sally Eberhardt works with Educators for Civil Liberties, researching civil rights issues post 9/11. She is founding member of Theaters Against War and has worked for human rights organizations in Britain and the U.S.A. She can be reached at email@example.com.