Take, for instance, Hepting v. AT&T, which arises out of the NSA's warrantless wiretap program. It's a class-action suit, brought on behalf AT&T's customers who claim that the company violated various laws when it allegedly gave the NSA access to its facilities and databases. As part of their case, the plaintiffs have submitted 140 pages of technical documents that, they say, lay out how AT&T's collaboration with the NSA works. The government doesn't claim that these documents are classified. Yet when the New York Times—which also has copies of these documents—showed them to telecommunications and computer security experts, these experts concluded that the documents themselves demonstrate that "AT&T had an agreement with the federal government to systematically gather information flowing on the Internet through the company's network." And, of course, the president himself has acknowledged the existence of the warrantless surveillance program.
That makes it awfully hard to understand how the core claims in this case—basically that the program exists and that AT&T participates in it—are so top-secret that, as the administration has claimed in its papers, the whole case must be dismissed before it gets started. Of course, it's not unimaginable that real state secrets could arise in this lawsuit, but if they did, there's no reason to think they couldn't be handled the same way such issues have been in the past—as discrete evidentiary matters. However, even this level of skepticism from the judiciary may be too much to ask; the court hearing el-Masri's case just rejected essentially the same argument.
Despite the burgeoning use of this privilege and the way it's been used to gut entire cases, the most disturbing aspect of the Bush administration's expansion of the state secrets privilege may well be this: More and more, it is invoked not in response to run-of-the-mill government negligence cases but in response to allegations of criminal conduct on the part of the government. These are not slip-and-fall cases. They are challenges to the administration's broad new theories of unchecked executive power. By using the state secrets privilege to shut down whole lawsuits that would examine government actions before the cases even get under way, the administration avoids having to give a legal account of its behavior. And if this tactic persists—if the administration continues to broadly assert this privilege and courts continue to accept it—the administration will have succeeded in creating an insurmountable immunity that can be invoked against pretty much any legal claim that the "war on terror" violates the law. The standard and winning response to any plaintiff who asserted such charges would be, quite simply, that it's a secret.
The Bush administration has fought at every turn to limit scrutiny of its conduct since Sept. 11. And, unless courts start to reject its assertion, the administration may have found in the state secrets privilege the ultimate tool for making its actions invisible.
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