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 and motley powers this president is claiming under the rationalizing rubric of the ‘war on terror.’ Of course the collective cowardice of members of Congress on this score should be discussed, and Drew attempts to explain why Congress has been unusually timid and quiescent in the face of this presidential power mania.
Every public citizen should take a moment to contemplate Drew’s conclusion: ‘That extraordinary powers have, under Bush, been accumulated in the “same hands” is now undeniable. For the first time in more than thirty years, and to a greater extent than even then, our constitutional form of government is in jeopardy.’
No doubt such an admonition will be branded by some as ‘alarmist,’ but then again so were the once timely warnings on ‘global warming.’
By way of considering the nature and magnitude of what needs to be done to mitigate, stop and correct the consequences of this power grab, I offer the following from Amelie Rorty:
‘Every power carries a hidden powerlessness, that of being dependent on cooperation. Every powerlessness carries a hidden power, that of withholding cooperation. [….] Since powerlessness is a function of desire, the powerless can, in principle and within severe limits, overcome their powerlessness by detaching themselves from their desires. but the Subject can only realize his hidden powers if he has insight, if he is imaginatively and intellectually enabled. The true latent power of the Boss is therefore that of forming the mentality of his Subjects, his being in a position to control their capacity to recognize their situation and the possibilities it holds.
[….]
Often what holds Subjects in damaging power relations is that they are unable to realize the options that are in principle open to them, or are unable to conceive ways of changing the options that are open to the Boss. It is not power as such, then, that holds Subjects in bondage. Indeed, our analysis suggests that there is no such thing as power as such, there are only parties in relative positions of being able to conceive or control conceptions of options. Subjects render services willingly or unwillingly because they believe the gains of doing so are greater than the losses they would incur by not doing so. But gains and losses are so in the eyes of the believer. Characteristically, the options of both the Subject and the Boss are at least in part critically fixed by their beliefs about their needs, about what they must have and what they cannot lose. If this is right, then being empowered critically rests on being in a position to define needs, either one’s own or someone else’s to serve one’s own.
[….]
Why are our imaginations of power structures so fixed? It is because we learn from experience; and our most formative experiences of power, and of power relations, are those we have during our prolonged and wholly dependent infancy. While this prolonged infancy makes empathy and psychological complexity possible, it exacts a cost. We are formed not only by what we have learned from experience, but by the ways we learn. As long as we are in a complex and often highly benign compliance to those who nurtured and sustained us as infants, we associate security and well-being with dependence on power figures. It is to these beginnings that our imaginations return when we are discomforted, depleted, in need. Even though we eventually chafed at the restrictions of our nurturing figures, even though, if we were lucky, we developed sympathy and autonomy, we still have as part of our expectations our early experiences of childhood where reality meant dependency, being Subject to a Boss. If that relation was a benign one, we are all the more subject to gravitate to reconstructing it when we are troubled; but if it was a malign relation, then we are all the more incapacitated. For then a malign power relation is what we expect of the world. It is what defined normality. And of course if it was malign, then we are crippled in our abilities to envisage alternative structures.’—Amelie Oksenberg Rorty, from her essay, ‘Imagination and Power,’ Social Sciences Information 22: 801-816 (1983), reprinted in her Mind in Action: Essays in the Philosophy of Mind
(Boston, MA: Beacon Press, 19888).
While Rorty (like that other Rorty, Richard) is a philosopher, her analysis resonates or fits well with insights gleaned from neo-Freudians like Otto Kernberg, or neo-Kleinians like R.D. Hinshelwood, C. Fred Alford and Michael Rustin, not to mention Erich Fromm’s work on ‘social character.’
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 in his chambers to determine if the government’s demand for secrecy was valid.
Refusing to release the documents, the government lost at the district and appeals court levels. But when the case got to the Supreme Court, the justices reversed course and accepted the government’s argument about state secrets — without ever looking at the documents. Even having the judge examine the evidence alone in his chambers could jeopardize national security, the majority ruled. When the documents were declassified in the 1990s, it became evident that the Supreme Court had been misled: The documents contained no state secrets.
In his authoritative 1940 treatise on evidence, John Henry Wigmore concluded that the executive branch is entitled to protect state secrets but that in cases in which classified information is at issue, it is up to the judge to decide whether such evidence qualifies as legitimately secret, and thus legally privileged. A court that “abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege,” Wigmore warned.
I believe that Wigmore was right and that the Supreme Court decided the Reynolds case wrongly. Some federal judges agreed, and they have continued to recognize their obligation to examine disputed documents in their chambers before passing judgment on matters of evidence and privilege.
In 1971, the U.S. Court of Appeals for the Federal Circuit argued that “an essential ingredient of our rule of law is the authority of the courts to determine whether an executive official or agency has complied with the Constitution and with the mandates of Congress which define and limit the authority of the executive.”
Claims of executive power “cannot override the duty of the court to assure that an official has not exceeded his charter or flouted the legislative will,” the court said.
The executive branch may assert a right to keep its secrets, but this must not be viewed as an absolute right, only a privilege granted by the court when appropriate. Otherwise, even in the age of terrorism, there can be no judicial independence and no fair trial for Americans who would challenge their government.’
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).