The NYT reports that the U.S. government has invoked its “state secrets privilege” in federal court motion seeking to dismiss the main legal challenge to the NSA wiretapping program. (The ACLU complaint bringing this challenge and its various supporting memos can be found here).
Although I don’t have a copy of the transcript of oral argument today in the Michigan federal court where the case is being heard, the state secrets privilege has been widely invoked by the federal government to defend many of its intelligence programs. It was most recently applied by a federal court to dismiss a lawsuit by a German national Khaled El-Masri seeking damages against the CIA for his mistreatment during a mistaken “rendition.” Here is that court’s description of the privilege:
The state secrets privilege is an evidentiary privilege derived from the President’s constitutional authority over the conduct of this country’s diplomatic and military affairs and therefore belongs exclusively to the Executive Branch. See United States v. Reynolds, 345 U.S. 1., 7-8 (1953). As such, it must be formally asserted by the head of the Executive Branch agency with control over the state secrets at issue, and then only after that person has personally considered the matter. See id. If validly asserted the state secrets privilege permits the government to “block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security.” Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C.Cir. 1983).
[snip]
Importantly, courts must not blindly accept the Executive Branch’s assertion to this effect, but must instead independently and carefully determine whether, in the circumstances, the claimed secrets deserve the protection of the privilege. Reynolds, 345 U.S. at 10. This determination requires a court to consider whether “a responsive answer . . . or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Sterling, 416 F.3d at 343 (quoting Reynolds, 345 U.S. at 9). In other words, this part of the inquiry focuses on whether the United States has made an adequate showing that disclosure of claimed privileged material would injure
national security.
[snip]
[I]n undertaking this inquiry, courts must also bear in mind the Executive Branch’s preeminent authority over military and diplomatic matters and its greater expertise relative to the judicial branch inpredicting the effect of a particular disclosure on national security. Accordingly, the judiciary must accept the executive branch’s assertion of the privilege whenever its independent inquiry discloses a “reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.” Reynolds, 345 U.S. at 10 (emphasis added). Importantly, once the court is satisfied that any disclosure of the putative secrets “might have a deleterious effect on national security, ‘the claim of the privilege will be accepted without requiring further disclosure.’” Id. (quoting Reynolds, 345 U.S. at 9). (emphasis added).
I understand the rationale for this privilege and it is worth noting that it has been widely invoked in contexts outside the war on terrorism (see
here for selected case files). But it is the kind of fuzzy doctrine (like the political question) that I dislike. It can easily be invoked too broadly (almost anything could have deleterious effect on national security) or too narrowly (could a court force the government to release identities of its CIA agents?). It sounds like the judge in this case is going to try to dodge this doctrine by dismissing the ACLU’s case on standing, but no doubt we will be fighting about this doctrine for years to come.
Important and timely question. And some excellent links. There’s a short and useful discussion by Jack Balkin over at Balkinization: http://balkin.blogspot.com/ (or click on under Blogroll at left). I view this resort to ‘state secrets privilege’ as simply one part of the ‘unprecedented reach for power’ under the presidency of George W. Bush deliciously detailed in Elizabeth Drew’s piece in The New York Review of Books, Vol. 53. No. 11 (June 22, 2006): ‘Power Grab.’ An integral and little discussed strategy that has allowed the Executive branch to enhance its power in novel ways has been the use of ‘signing statements,’ wherein Bush ‘claims the power to execute the laws as he interprets them, ignoring congressional intent.’ As one of the grounds Bush uses to ideologically justify this historic power grab Drew cites the ‘heretofore obscure doctrine called the unitary executive:’ ‘The concept of a unitary executive holds that the executive branch can overrule the the courts and Congress on the basis of the president’s own interpretations of the Constitution, in effect, overturning Marbury v. Madison (1803), which established the principle of judicial review, and the constitutional concept of checks and balances.’ It is utterly chilling to contemplate the myriad… Read more »
Of course Rorty’s book was published in 1988!
As with the political question doctrine, I have now also written a post examining the state secrets doctrine under international human rights law: see here.
In it, I propose to examine the lawfulness of such a doctrine, as well as its proper reach, and the procedure to be followed in its application, insofar as these matters are touched by international human rights law.
As ever, I would be grateful for comments.
On a lighter note, and courtesy of CrimeProfs blog, the Onion has the following story: NSA Wiretap Reveals Subject May Be Paying Too Much For Long-Distance
See http://www.theonion.com/content/node/49182
In today’s LA Times there’s a short article by Louis Fisher, author of a forthcoming book which analyzes US v. Reynolds, 345 U.S. 1 (1953): In the Name of National Security. I quote from the second half of his piece: ‘The fact is that the branch of government that runs the courtroom and decides questions concerning privilege and the introduction of evidence is the judiciary, not the executive branch. Judges have a constitutional duty to function as neutral referees to allow each side to present its case fairly. A court that automatically accepts the government’s argument about state secrets, without ever looking at the documents in question, aligns the judiciary with the executive branch and eliminates any chance of a fair trial. The “state secrets privilege” reached the Supreme Court in 1953 in United States vs. Reynolds, a case in which the widows of three civilians who died in the crash of a B-29 bomber sought damages. They asked the government to give them the accident report and the statements of three surviving crew members. Lower courts held that the government must surrender the secret documents to the trial court or lose the case. The judge would examine the documents… Read more »
With regard to President Bush’s use of ‘signing statements’ mentioned in Mr. O’Donnell’s first comment above, there is an excellent (short but informative) article available at the American Constitution Society for Law and Policy by Professor Neil Kinkopf available here: http://www.acslaw.org/node/2965
I learned of this courtesty of William Edmundson at the Leiter Reports (see Blogroll at left).