Professor of Law Stephen Vladeck at American University has written a seminal article entitled The New National Security Canon detailing the growth and disturbing consequences of the increasingly expansive post-9/11 national security regime in damages suits brought against the United States government.
Since 9/11 the accelerated expansion of the national security state and mindset has increasingly normalized the undue due deference courts have paid to the Executive Branch when it comes to the invocation of state secrets in protecting secrecy self-interest, shadow government conduct, and the outright blocking of attempts by those egregiously harmed, by these often highly questionable and extra-Constitutional government activities, from seeking claims for damages.
In light of my own experiences as a former senior executive at the National Security Agency prosecuted and indicted as a criminal defendant under the Espionage Act, I can fully appreciate the challenges faced by victims of 9/11 due to government misconduct and illegalities that violated their basic rights.
I was a whistleblower who exposed government illegalities, massive fraud, waste and abuse as well as crucial intelligence failures, malfeasance and wrongdoing within the national security regime and then painted as a criminal, traitor and turncoat for allegedly betraying my own country, while those who committed the crimes and the wrongdoing were not held to account.
National security has become the third rail of government - the untouchable - and inviolate.The policy of national security has replaced the rule of law - bifurcating our government in two - and creating an expanding secret government operating under often extra-Constitutional Executive Branch directives, executive orders, exigent conditions and ex post facto enabling act laws pushed through and passed by a largely compliant Congress that often make legal what was patently illegal because national security takes primacy over law and the Constitution becomes an inconvenient truth that gets in the way.
Invoking the doctrine of national security further justifies all that is done under its cover. In essence, national security has become the new prevailing state religion with classified information as the canon, secrecy the coin of the realm and the use of extra-legal state secrets policy the cloak that protects all attempts to hold the executive to account.Questioning the canon often invites retaliation and reprisal or even excommunication.
In this often impenetrable world of labyrinthine secrecy and bureaucracy, those seeking recompense more often than not find themselves experiencing a less than sympathetic audience when bringing their circumstances in front of the courts. Vladeck's article highlights the plight faced by victims of post 9/11 government misconduct when attempting to pursue damage claims arising out of government abuses against them.
It also seems quite clear that attempts to hold government officials accountable for misconduct have led to the invocation of sovereign immunity or the state secrets doctrine by the Executive Branch in the vast majority of cases brought forward to date.
Are we seeing the emergence of extra-Constitutionally invoked novel execu-prudence where the Executive Branch has created the very conditions for excising the courts from proper jurisprudence over them (as is proper and necessary under the Constitution as arbiters of the law), while the executive asserts the lack of institutional competence the courts possess in properly judging national security doctrine or any damages against plaintiffs that arise from national security policy incompetence, misconduct, and illegalities?
Has the emergence of the national security canon canard become the foundation for what Vladeck calls the "normalization of the exception" - perpetuating near total control by the Executive Branch in having the final check over suits brought against itself, but conveniently politicizing the interpretation of existing law for its own ends and gain or creating its own secret and exigent 'laws' by unilateral fiat when existing law is insufficient to protect itself from accountability?
In other words, does the canon of national security give the Executive Branch a special standing exemption from all claims seeking damages from the government because the plaintiffs have no standing and therefore any remedies that award damages or compensation would violate national security policy?!Furthermore, are we in a time where the government has established novel defense arguments of essential and sovereign immunity from lawsuits arising from damage incurred to plaintiffs due to government misconduct simply because it was done in the name of national security and collateral damage is the price for protecting state secrets and continuance of the national security regime's activities without undue interference?
Does the national security canon provide an unfettered provision that protects government liability and accountability from plaintiff claims even when the government is overzealous, overreaching, or has engaged in misconduct and wrongdoing?
Case in point. I am a co-plaintiff in a civil lawsuit against the NSA and the FBI for the return of seized property they continue to indefinitely retain. The government is the defendant and has invoked several novel theories and manipulation of law, statute and precedent in the case to justify their continuing retention of our seized property.
They have claimed the seized property is contraband even though no crime was committed, argue that we have no standing because we have no clearances and that any and all information they label as government information (even unclassified) is subject to control and must remain in the possession of the government. They have also asserted that the courts have no jurisdiction because only the Executive Branch has exclusive authority over determining the nature of the material! They have also said in court filings that the government cannot return our seized property because if they did they would violate the Espionage Act because we are not authorized to receive it.So Kafkaesque!
Are we at a point where national security policy - where so much of it is conducted in secret - is now immune from jurisprudent oversight and off limits for determining the legality, let alone the Constitutionality of these policies, let alone questioning their validity?It raises very troubling questions for the future of a Constitutional Republic and an open and transparent democracy.
Seems the disturbingly normalizing reality we face is that any government conduct protected by the blanket of executive branch invocation of national security under the guise of cyber, counterterrorism or other threats - even when illegal, unlawful or causes unwitting or witting damages to people - is therefore immune from redress under the 1st Amendment, whistleblowing, congressional oversight, or even judicial review.
What country do we really want to keep for this generation and generations yet to come?
Is sacrificing the inalienable rights of life, liberty and the pursuit of happiness worth the price?