I'm Suing the Government. It Has a Problem With That.
A federal appeals court recently heard oral arguments in my lawsuit against former Attorney General Eric Holder, unnamed “John Doe” federal agents at the FBI and Justice Department, and others. At issue are the intrusions into my computers while I worked as an investigative reporter for CBS News, revealed by multiple forensic investigations showing use of proprietary government surveillance programs.
It was clear early on that the Justice Department was not interested in investigating or prosecuting its own. So I began the search to find the facts about the invasion into my computers and life. That morphed into a lawsuit for damages, because that’s what the law sets out as the legal remedy.
What’s been most striking to me in this process is just how one-sided the rules are when Americans take on their own government. Although I had experienced some of this, albeit in the context of reporting consumer safety and taxpayer advocacy stories over the years, it has been dismaying to learn the extent to which rules and laws shield the government from accountability for its abuses -- or even lawbreaking. That includes special rules delaying matters, such as requirements to give a 180-day notice to even bring the lawsuit; special pleading rules that permitted the government to go years without ever having to produce documents or answer questions under oath; special rules developed to shield high-ranking officials like the attorney general from accountability regardless of how egregious the conduct might be; and special rules allowing the government to simply not produce information to its own citizens – even about the citizen bringing suit -- without any real consequence or objective explanation.
It’s been a long and frightening lesson.
The government, on the other hand, has the benefit of endless time and taxpayer funds to delay and obstruct. The rules seem rigged to protect government lawlessness, and the playing field is uneven. After years without turning over a single document in response to dozens of our subpoenas, the government now argues that my case should be dismissed, in part, because I haven’t learned the names of the “John Doe” federal agents to insert in the lawsuit; names which only the government knows and has refused to divulge.
In short, the government withheld the names, and now argues the lawsuit should end because I haven’t learned the names. That effectively prohibits citizens from obtaining justice when government is the lawbreaker. When Justice Department attorney Thomas Byron made that case before three appellate judges in the U.S. Fourth Circuit Court of Appeals, one of them interrupted.
“But of course,” said the judge, stating the obvious reason why I don’t yet know the names of the federal agents. “This was done surreptitiously.”
Byron further argued that Holder should be immune from the lawsuit in its entirety because I haven’t directly linked him to the surveillance. A second judge asked, “How do you sue the ones that are? … From the government's perspective, they're not going to give you names unless you get into it to try to find out, to name who it is who’s doing it.”
“The government seems to have played this thing pretty well,” the judge continued. “But the idea is that you have a citizen whose rights had been compromised and the law does allow for a remedy. Someone once said … there should be some remedy for every wrong in cases like this.”
That’s common sense talking. But it doesn’t mean my case moves forward; far from it. Too many processes favor the government. The deck is still stacked.
I’m luckier than many citizens who would seek justice in these circumstances. My primary lawyer – the one who has been with me since day one – is a personal friend who believes deeply in the cause. He’s not only highly experienced in litigation, but he agreed to float the exorbitant costs and has absorbed many of the daily expenses himself, while realizing it’s more important to learn the truth rather than seek financial compensation. A diverse group of whistleblower, civil rights and privacy advocates recently stepped in with a fundraising effort to assist with expenses when they learned no civil rights or press freedom groups had stepped up to help me with this lawsuit seeking government accountability for hacking computers of an American journalist.
Even so, this entire process has been expensive for me and my family, both financially and emotionally. We Americans like to believe we live in a free country with the right to use the justice system to ensure that government abuses are stopped or redressed. That’s far from the truth, and it’s an awful thing to experience first-hand.
More important in the big picture is the hard reality that the courthouse is effectively closed for a significant portion of society in situations where the government is alleged to have violated basic, fundamental Constitutional rights of its own citizens.
If my case fails to move forward, with all of its detailed allegations and forensic evidence, it would effectively mean that no surveillance claim can ever be made to stick against the government. It would essentially create immunity for the feds who hack citizens’ computers because the government, which holds the evidence, can obstruct and refuse to produce it. That seems entirely inconsistent with the rule of law.