Although a U.S. district judge in Detroit ruled last week that the NSA's warantless surveillance program is unconstitutional, the legal battle over the program is far from over. Earlier this month, about 30 wiretapping lawsuits filed against telecom companies were consolidated into one case, which will be heard by a district judge in San Francisco. Another lawsuit filed against the Bush administration by the Center for Constitutional Rights will begin oral arguments in New York on September 5.
The administration has moved to dismiss each of these cases based on the "state secrets" privilege, a once-obscure legal precedent that Bush has invoked at least 20 times, more than any previous administration. In theory, the privilege allows the government to limit court cases that could make sensitive information public; in practice, it is often used to shut a suit down entirely and has been called the government's "nuclear option."
The state secrets privilege was first established as a legal precedent in 1953, when three widows sued the government for damages after their husbands died in the crash of a military aircraft. The government claimed that it could not produce the accident report "without seriously hampering national security." Fifty years later, when documents related to the incident were declassified, the widows and their families learned that the government had not been protecting state secrets, but simply covering up poor maintenance.
So began the checkered history of a legal sledgehammer that many claim threatens the core of constitutional democracy. In many cases, the government's claims that documents relevant to the case contain state secrets have never been examined by a judge, and no suit where the "nuclear option" was deployed has ultimately prevailed.
The list of state-secrets cases combines the fantastical, the bizarre, and the merely seamy. In one 1985 case, the government shut down a libel suit filed against Penthouse by a dolphin expert after a story suggested that the man was working with the CIA to develop dolphin-mounted weapons and had offered to sell the technology to foreign countries.
In 1988, a teenager named Todd Patterson sued the FBI for refusing to release the full contents of a file opened on him when, in elementary school, he requested information from more than 150 countries in order to compile an encyclopedia as a school project; the case was quashed by a state secrets claim. The FBI and the CIA have dodged employees' discrimination suits by invoking state secrets. The government has also deflected whistleblower suits filed against the FBI, the CIA and a government contractor that allegedly falsified promising test results for the national missile defense program. (As Mother Jones reported in 1994, the CIA also used the privilege to shut down an employment suit filed against a Maryland bank.)
Sibel Edmonds, a former FBI translator who now heads up a National Security Whistleblowers' group, ran into the state secrets privilege when she filed suit claiming that the bureau had fired her for complaining about security breaches. Ann Beeson, an ACLU attorney who was lead counsel in that case and the NSA wiretapping case just decided in Detroit, called the Edmonds case "the most extreme" use of the privilege she has seen saying, "the substance of the suit didn't have anything to do with her work, which was classified." In 2004, then-Attorney General Ashcroft retroactively classified information about Edmonds' claims. In a suit filed by families of 9/11 victims, which was blocked by the state secrets claim, the plaintiffs were not allowed to call Edmonds as a witness nor to mention such basic information as her birth date and the languages she speaks.
Civil liberties advocates are increasingly troubled by the fact that judges often interpret the privilege as a curtain-closing argument—without even verifying the government's claim that national security is at stake. "If the court just accepts it, it's just an office of the White House," says Lou Fisher, author of a recent book on the United States v. Reynolds case. Shayana Kadidal, an attorney at the Center for Constitutional Rights, agrees. "You're not going to take the Executive's word on which cases the courts can and can’t hear," he said. He added that "there are lots of ways the judiciary can protect the secrecy of information," including procedures already laid out in the Classified Information Protection Act. Beeson, of the ACLU, said that the Bush administration has used the state secrets argument to quash cases where there is a mere "possibility that secrets will be revealed." This rationale has led the administration to use the privilege in cases like the NSA suits to limit the use of public information.
Yet there are signs that the courts' habit of accepting state secret claims without question may be coming to an end. Judge Vaughn Walker, who will be hearing the 30 surveillance cases consolidated in San Francisco, has already turned down the government's state secrets request to dismiss one of the cases out of hand; enough information about the wiretap programs is publicly available, he noted, for the case to move forward. (Although the judge who ruled on similar grounds against the NSA in Detroit has been accused of judicial activism, Walker is a widely respected Republican appointee.) Whether or not the plaintiffs ultimately succeed at building a case solely with public information, the public will have an opportunity at least to watch them try.