The DOJ's Brief in Jewel v. NSA

Last Friday, the Obama administration filed a brief seeking dismissal of the EFF's latest lawsuit relating to the NSA program (Jewel v. NSA). As Glenn Greenwald observes, for anyone who expected the Obama administration to handle these matters differently than the Bush administration, this brief is very disappointing, to say the least. As with the Bush administration, the Obama DOJ is seeking dismissal of the case under the "state secrets" doctrine. Moreover, the brief raises a strange sovereign immunity argument, which I'll get to in a moment.

Regarding the "state secrets" doctrine, there are two basic understandings of what this doctrine is. The first, relatively uncontroversial understanding is that it is essentially an evidentiary privilege. If properly invoked, it prevents a litigant from using certain evidence to prove his/her case, but it does not bar the litigant from proceeding with the case based on other available evidence. The much broader (and more controversial) Bush era interpretation of the doctrine is that the very subject matter of some cases so implicates national security that the cases must be dismissed. Sadly the Obama DOJ asserts both of these arguments in its brief:

Dismissal of these allegation would thus be appropriate on the ground that its very subject matter would inherently risk or require the disclosure of state secrets. But, to be clear, the Government does not seek dismissal merely on this basis, but seeks summary judgment, as permitted by Kasza, on the ground that the Government’s privilege assertions exclude the very information necessary for plaintiffs to establish their standing or a prima facie case, as well as information relevant to the defense of both the Government and personal capacity defendants.

The latter argument is pretty strong given the nature of the case, so I'm not sure why the DOJ feels it necessary to raise the broader "subject matter" claim. I think there's a tendency among government litigators (and this is really true of all litigators) to not leave any potential meritorious argument out of a brief. And, sadly, because of the Bush administration's success in litigating this issue, there are now a number of cases that can be cited in support of the broader state secrets interpretation. I say this not to defend the brief, but to explain it. It's probably unrealistic to expect DOJ attorneys to voluntarily drop potentially winning arguments; the best way to roll back the expansion of the state secrets doctrine at this point is through legislation.

But even that rationalization doesn't explain the sovereign immunity argument the DOJ raises in the brief, which as far as I can tell, is completely novel. As I understand it, the DOJ is arguing that sovereign immunity has not been waived with respect to claims (such as the ones at issue in Jewel) that do not involve allegations of improper government disclosure of information. For those of you not familiar with the basic doctrine of sovereign immunity, the federal government (as a sovereign) is immune to civil lawsuits for money damages except to the extent Congress waives that immunity by statute. Congress waives sovereign immunity by passing a law that specifically authorizes lawsuits against the United States.

The relevant provisions, in this case, are contained in Chapter 21 of Title 18. There are two provisions, one that creates a private cause of action against persons other than the United States, and one that specifically permits suits against the United States. The first is section 2707, which states:

[A]ny provider of electronic communication service, subscriber, or other person aggrieved by any violation of this chapter in which the conduct constituting the violation is engaged in with a knowing or intentional state of mind may, in a civil action, recover from the person or entity, other than the United States, which engaged in that violation such relief as may be appropriate.

The other provision, section 2712, states:

Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District Court against the United States to recover money damages.

Now according to the DOJ's brief, section 2712 should be interpreted very narrowly as only waiving sovereign immunity with respect to instances in which the government improperly discloses someone's personal information or records (which the plaintiffs in the EFF suit do not allege). But as you can see, there's nothing at all in the statutory language that would limit the waiver in that way. Section 2712 authorizes anyone who is "aggrieved" by a violation of any of the various relevant statutes (including FISA) to bring a claim for money damages against the United States. Can't someone be "aggrieved" by being illegally spied upon, even if the government never publicly releases the information it gathered? This argument just doesn't make any sense to me.

Maybe I'm missing something, but reading section 2707 to somehow limit the scope of section 2712 strikes me as a bizarre and completely counterintuitive way of interpreting a relatively straight forward statute. And if this argument is as weak as sounds, it's incredibly disappointing that the Obama DOJ would raise in order to dismiss a legitimate lawsuit.