In a case that involved extensive surveillance of Muslim community groups and leaders, the Obama administration argued that the government not only can lie about its surveillance activities, but can, in turn, lie to federal judges when “national security” is involved. Despite his strongly worded April 27 decision censuring the government for lying, U.S. District Judge Cormac J. Carney ultimately ruled that the government will not be charged with contempt of court or perjury or face any other kind of official sanction.
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 five Muslim community leaders and six Muslim organizations:
· the Islamic Shura Council of
· the Council on American Islamic
· the Islamic Center of
· the Islamic
the West Coast Islamic Center
· Human Assistance and Development International, Inc.
These men and groups were among the first Muslim Americans to meet and share information with the FBI after 9/11 and included individuals like Mohammed Abdul Aleem, who served as a government witness for the U.S. Department of Justice in a 2004 terrorism case in
By May 2006, the plaintiffs began to feel that they 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). After almost a full year had elapsed, the government told nine of the plaintiffs that they had “no records responsive” to their request regarding FBI surveillance. In June 2007, the FBI sent a single redacted page to CAIR and three redacted pages to Hussam Ayloush. 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 claimed they were “outside the scope” of the FOIA request. This was the government’s first instance of lying to the court. They had, of course, already lied to the plaintiffs in their previous correspondence, which, as Judge Carney cited in his decision, was a curious tactic to take as, under FOIA, they could simply have 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.
In April 2009, faced with cross-motions by the government and the plaintiffs in the case, 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 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 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, after which he issued a sealed order in June 2009. 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 April, 2011.
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” or “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.”
Despite these fine sentiments, Carney (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 Sowles to a state bar for, at the very minimum, a disciplinary investigation. By failing to hold the government accountable for lying, Judge Carney succeeded only in ultimately bolstering the government’s confidence in acting with impunity.
For many scholars of history, government surveillance of Muslim American groups over the past decade parallels the excesses of the FBI’s shameful and often illegal COIN- TELPRO program of the 1950s-1970s. The USA PATRIOT Act expanded the government’s ability to wiretap phones, read emails, and gain access to personal information, including bank records, medical records, and even library records.
This over-reach lost the government many allies in the Muslim American community who, like the plaintiffs, were initially eager to work with the government after 9/11. The government hinted at the new level of unfettered reach they now wanted in one section of their appellate brief not under seal, writing that the courts needed to “give special deference to the Executive Branch when it invokes national security concerns.”
The only public comment made by the government regarding the case appears to have been made by a Department of Justice spokesperson, Tracy Schamler, after the sealed order was opened. She stated: “We strongly disagree with the characterization that the Court was misled”—an eerie echo of Richard Nixon’s claim to David Frost in 1977, “When the president does it, that means that it is not illegal.”
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. What might be most shocking is how the case reveals the
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, including the Coalition for the International Criminal Court and the National Labor Committee.