07/18/2006 03:07 pm ET Updated May 25, 2011

Bush Tells ACLU It's A Secret

In a national press briefing today, the ACLU blasted Arlen Specter's plan for sham review of the NSA domestic spying program. Meanwhile, the Bush Administration continues to stand in the way of that program's reaching a real court. Last week, government attorneys asked a U.S. District judge in Detroit to dismiss the ACLU's recent lawsuit challenging the government's ability to eavesdrop on Americans. The reasoning -- that open court proceedings would expose sensitive state secrets -- is the same argument that was rejected by a New York judge last week in my own organization's parallel case, CCR v. Bush.

The state secrets privilege dates back to a 1953 case in which the government blocked a lawsuit about the fatal crash of a military airplane, claiming that the evidence contained crucial state secrets. As it turned out, cause of the accident was nothing more secret than embarrassing negligence. Nonetheless, the modern state secrets privilege was born. That means the President can invoke state secrets to stop a court case, event preventing a judge to consider it in closed chambers.

Perhaps there are cases when the ordinary procedures for protecting classified information aren't good enough. Perhaps sometimes, even after closing the courtroom, sealing briefs, and making the attorneys seek security clearance, arguing a case would still endanger our nation's secrets. But the spying challenges are not such a case. All the evidence needed to prove the NSA program's unlawfulness comes from public statements by the likes of Alberto Gonzales, Michael Hayden, and President Bush himself. Unless they mean to classify the President's own State of the Union address, their claims of secrecy should certainly raise a few eyebrows.

It seems that the Bush Administration has a particular affinity for this hitherto rarely used privilege; it has exploited it to block judicial scrutiny of everything from the illegal firing of whistleblowers to allegations of torture and extraordinary rendition. Under this President's guidance, what was intended as an extraordinary measure to prevent the dissemination of vital security secrets has been used repeatedly to evade accountability for criminal behavior.

And let's be clear: wiretapping without a warrant is a felony.

The President's lawyers have been claiming he can ignore the law based on his inherent authority to wage war. Yet in a related case, the Supreme Court recently rejected that argument. The court's complete rejection of Bush's military tribunals in the Hamdan case sent a strong message: Presidential wartime authority is not a blank check to break the law. The Administration has made the same claim of sweeping wartime authority to justify the NSA spy program.

It should not be difficult to see that the Administration's invocation of state secrets privilege is disingenuous at best. But this assault on the power of the courts has potential to do serious damage to our system of checks and balances. Here is how ACLU attorney Ann Beeson explained the danger of accepting the administration's arguments: "By implication, the executive branch could use the state secret privilege to immunize any action that it takes in the war on terror, including for example, the arbitrary detention and torture of Americans on American soil."

The New York judge who rejected the administration's motion to dismiss CCR v. Bush refused to allow the Administration to hide behind the smokescreen of national security. Unless some in Congress get their way, that case will now be adjudicated in court, on its merits, through the standard mechanism of the judicial system -- as should the ACLU case.