The government asserts national security as the reason it lied to a judge in a case about surveillance of Muslims in Southern California. But keeping us safe also requires respect for the rule of law and the Constitution.
U.S. District Judge Cormac J. Carney of Santa Ana, photographed here in 2005. (Mark Boster / Los Angeles Times
May 9, 2011
Last month, U.S. District Judge Cormac J. Carney of Santa Ana revealed that the government lied to him in a case related to government surveillance of American Muslims in Southern California. The plaintiffs — including the Islamic Shura Council of Southern California and the Council on American-Islamic Relations — were seeking to obtain records that they believed would prove the FBI had been unfairly targeting Muslims in the area. Carney had asked government lawyers to provide him with all documents pertaining to the Freedom of Information Act request filed by the Muslim groups. Although the government initially provided some of the documents for the judge to review in chambers, it later admitted that it had intentionally withheld additional pages.
“The government asserts that it had to mislead the court regarding the government’s response to plaintiffs’ FOIA request to avoid compromising national security,” Carney wrote in an 18-page ruling. “The government’s argument is untenable. The government cannot, under any circumstance, affirmatively mislead the court.”
Carney is right. There is no law that permits an individual or the government to lie to the court. To do so is to undermine due process and to prevent courts from enforcing laws. Yet for nearly a decade, the George W. Bushadministration and now the Obama administration have used national security as it if were some of kind of fig leaf to cover a multitude of abuses.
We understand that the government has a duty to protect secrets that would put the country in jeopardy if revealed. There are even exemptions under FOIA that the government may claim in order to avoid releasing documents it believes could damage the country’s security. But that doesn’t mean the government can mislead a court about the existence of those documents.
Carney has said he will not seek sanctions against the government because he believes that though it was overzealous, it did not act in bad faith. His decision, like those of previous courts, is far too accommodating of the government’s interpretation of the law. In this case, it is not even clear which statute the government was relying on because it has refused to disclose its legal reasoning. The government’s decision to lie is even more absurd given that Carney never disputed that the documents in question should remain under seal.
It is hard to take seriously the Obama administration’s claim that keeping Americans safe requires that the government lie to the courts and the public. Keeping us safe also requires respect for the rule of law and the Constitution.