Friday Night Massacre: Government Moves at Midnight to Dismiss NSA Lawsuits

05/29/2006 11:10 pm ET | Updated May 25, 2011

A few minutes before midnight last Friday, the government filed a motion to dismiss our lawsuit against the NSA's warrantless wiretapping program on the grounds that allowing the litigation to go forward would jeopardize "state secrets." (Their heavily redacted but still very long brief is here.)

I'll have more to say about their particular arguments as we get closer to filing our response. But I have plenty to say right now about the absurd notion that the executive branch can tell the federal courts what cases they can and can't hear.

As I summarized the government's view of the "state secrets" privilege two weeks ago:

In its most basic terms, invocation of the state secrets privilege involves the government submitting an affidavit from a department head saying that any court proceedings would end up spilling secrets that would threaten national security, and asking the court to dismiss the suit just based on those grounds. Typically, when faced with sensitive evidence, a court may close the courtroom, place briefs under seal, and make the other side's attorneys promise not to divulge the information, or even make them seek security clearance in rare cases. The state secrets privilege says that isn't good enough for some secrets. For the most sensitive secrets, the case must be dismissed outright. Even the judge cannot be trusted to hear them. In fact, they are so sensitive that the judge can't even evaluate the level of confidentiality required for himself; instead, he must rely on an executive affidavit. Or so the government's argument goes.

If this account (especially the part in italics) seems to you to contradict the core idea of judicial review--independent judges making independent evaluations of the facts and how the law applies to them--you're right. Where did such an absolutist doctrine enter American law?

Conservatives, take note: IT CAME FROM FOREIGN LAW!

In the case that established the state secrets privilege--United States v. Reynolds, 345 U.S. 1 (1953)--the Supreme Court noted that cases discussing this sort of broad privilege "ha[d] been limited in this country" but that the "English experience has been more extensive." Essentially our Supreme Court imported the state secrets privilege from British law.

The Court did so without giving thought to serious differences between our system of government and theirs. The British government is organized around the idea of Parliamentary supremacy. Although judges review statutes for consistency with the (unwritten) constitution, all they can do is issue a "statement of incompatibility"--unlike our courts which routinely declare laws void as unconstitutional. If Parliament decides not to take a ruling from the highest courts seriously, it has the last word, not the courts. The Prime Minister is an agent of Parliament--unlike our President, he is not elected directly by the people, and he serves at the pleasure of Parliament. The highest court--the Law Lords--is technically a committee of the upper house of Parliament (the House of Lords). The very idea of separation of powers is to this extent foreign to the English system, and so we shouldn't be surprised that they developed a "state secrets" privilege that lets the executive spit in the face of judicial independence.

Justice Scalia should be outraged that our law contains this foreign virus. If the House Republicans' measure barring judges from basing their reasoning on "judgments, law, or pronouncements of foreign institutions" ever gets passed into law (and somehow isn't held unconstitutional) then the state secrets privilege should be the first thing to be deported from our legal system.

Experience counsels this result as well as logic, because the most frequent use of the privilege has been to cover up executive mistakes.

In the Reynolds case itself, a B-29 bomber crammed with intelligence equipment crashed, killing several civilians on board. Their widows sued. The government withheld the official accident report from the widows, saying it "cannot be furnished without seriously hampering national security, flying safety and the development of highly technical and secret military equipment." In 2000, 52 years after the crash, the report (at p.11 of the link) was finally declassified.

Did the withheld "state secret" documents show anything about a "secret mission," "newly developing electronic devices," or anything else the military should have kept secret? Nope. Instead, all they showed was that the crash and resulting deaths were caused by... you guessed it: negligence. (The civilians didn't receive training in how to bail out in emergencies, and the plane itself was a lemon "not ... safe for flight" (read about it yourself at pp.20 and 22-24 of this pdf)).

Similar cover-ups have been at work in several recent cases where the government has managed to successfully assert the state secrets privilege. One of them involved Sibel Edmonds, a Turkish translator hired by the FBI who was appalled at what she saw inside the agency's translation section and complained to her superiors. Like many whistleblowers before her, she was fired. She brought suit, and the government successfully argued that the state secrets privilege was an absolute bar to her suit going forward. (The case was heard before a host of conservative trial and appeals judges; they barred her from the courtroom during the argument of her appeal.) The Supreme Court declined to review the case.

What was it she was trying to tell her supervisors that got her fired? Among other things: that a translator sent to Guantánamo to translate Farsi detainee interviews didn't speak that language, and that foreign diplomats suspected of spying in the U.S. were having their wiretaps translated by their own relatives who worked for the FBI. Rather than let those serious national security breaches see the light of day (and perhaps become subjects of an embarrassing outside investigation), the FBI fired her, and then successfully managed to deprive her of her vindication in court, courtesy of the state secrets privilege.

The Edmonds case reveals the rot at the heart of the government's "war on terror"--that the legal shortcuts the administration has used, by removing oversight, ended up weakening law enforcement's efforts against terrorism by diminishing accountability. (No surprise, then, that most of these shortcuts were dreamt up by ivory-tower right-wing academic lawyers such as John Yoo with no experience in law enforcement.) The same applies to the massive detention sweeps that have alienated immigrant communities--law enforcement's most valuable ally, its eyes and ears on the street--from the federal authorities, and to the warrantless and most likely suspicionless surveillance carried out by the NSA--which the Times and Post exposed as being vast sinkholes of effort for the agents forced to follow the NSA's dead leads.

This is the security you've gained by giving up your rights--specifically, the right to know what your government is up to. Feel safer?

May 30, 2006


POSTSCRIPT: Lots of substantive questions in the comments today. Some responses: Cynical girl asks why the government can make secrecy claims when they have admitted to so much publicly already. Our position is that there is enough in the way of public admissions to hang the administration with its own words; indeed, we filed a motion for summary judgment two months ago based on these public admissions from Gonzales, Hayden, etc. Jonpier suggests that Congress could undo the state secrets privilege by statute. That is certainly the position of most commentators; the courts have described the privilege as a "common law" privilege, that is, one that comes from the vast body of judge-made law that, in some cases, preexists the Constitution itself, being inherited from England. (That's not to say ancient English cases can be binding in themselves even on questions of common law, although--like all foreign legal authority, and even this blog--they can be persuasive, as mluciente notes.) Anyway, common law rules are always susceptible to be abrogated by statute. In England, the judge-made privilege was eventually adopted formally by statute, see Crown Proceedings Act, 10 & 11 Geo. 6, c.44, § 28 (1947) . Scott Candage reads Reynolds as of a line with older military secrets cases. Keep in mind many of those cases involve spying contracts, which allows the argument that there are implied limitations on litigation that are not spelled out in the written contract. Most commentators feel Reynolds adopted its standards "almost verbatim" from Duncan v. Cammell, Laird & Co., Ltd, [1942] A.C. 624 (House of Lords 1942) (with the "almost" being an important qualifier), which had overturned Robinson v. State of South Australia, [1931] A.C. 704 (House of Lords 1931). So the privilege in the form the Duncan court articulated it didn't exist in England until 1942, although there are cases as far back as 1860 that anticipate parts of it. Anyhow, compare the language of Duncan to Reynolds and you'll have a sense of why I phrased things the way I did. Thanks for reading.