Secret guarding.

The law, lawyers, and the court.
May 22 2006 3:57 PM

Secret Guarding

The new secrecy doctrine so secret you don't even know about it.

Illustration by Mark Alan Stamaty. Click image to expand.

Last Thursday, a federal court in Virginia threw out a lawsuit against the government that had been brought by a German citizen named Khalid el-Masri. El-Masri alleged that the government had violated U.S. law when—as part if its "extraordinary rendition" program—it authorized his abduction, drugging, confinement, and torture. His captors allegedly shuttled him on clandestine flights to and from places like Kabul, Baghdad, and Skopje, Macedonia, during the five months of his detention. He was released only when the government realized it had kidnapped the wrong man. El-Masri has substantial evidence to back up his story, and German prosecutors have verified much of it. And, while the government has not confirmed that it took el-Masri as part of its extraordinary rendition program, it has not shied away from admitting the program exists; it has in fact trumpeted it as an effective tool in the "war on terror." So why then was el-Masri's lawsuit thrown out? Because the judge accepted the government's claim that any alleged activities relating to el-Masri were "state secrets."

Never heard of the "state secrets" privilege? You're not alone. But the Bush administration sure has. Before Sept. 11, this obscure privilege was invoked only rarely. Since then, the administration has dramatically increased its use. According to the Washington Post, the Reporters' Committee for Freedom of the Press reported that while the government asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it's asserted it 23 times in the four years after Sept. 11. For an administration as obsessed with secrecy as this one is, the privilege is simply proving to be too powerful a tool to pass up.

There is nothing inherently objectionable about the state secrets privilege. It recognizes the reasonable proposition that even simple lawsuits against the government—tort suits, breach of contract claims—can sometimes involve issues that would be genuinely harmful to national security if they saw the light of day. Say, for instance, that a janitor in Los Alamos, N.M., tripped over a box of uranium lying in the hallway in 1943. It would hardly do to have the evidence used in the subsequent slip-and-fall case scuttle the entire Manhattan Project. So, tough though it is on individual plaintiffs, the courts have historically deferred to government claims that some evidence in certain litigation must be shielded as "state secrets."

Traditionally, this privilege was most often used to prevent plaintiffs from getting a hold of very specific, sensitive evidence in an ongoing lawsuit; it was seldom invoked to dismiss entire cases. Maybe that hypothetical Los Alamos plaintiff couldn't have discovered exactly what was in the box that he tripped over. But, generally speaking, if the lawsuit could have proceeded without his knowing the contents of that box, it would.

The troubling shift today is that in el-Masri and other similar lawsuits—almost all of which involve important challenges to the government's conduct since Sept. 11—the administration has been routinely asserting the privilege to dismiss the suits in their entirety by claiming that for it to participate in the trials at all would mean revealing state secrets. In other words, in addition to relying on the state secrets doctrine to an unprecedented degree, the administration is now well on its way to transforming it from a narrow evidentiary privilege into something that looks like a doctrine of broad government immunity.

The state secrets privilege has proved to be such an enticing tool for the Bush administration largely because courts have historically been very deferential to the government's secrecy claims. According to an analysis by William Weaver and Robert Pallitto, political science professors at the University of Texas-El Paso, courts have examined the documents' underlying claims of state secrecy fewer than one-third of the times it has been invoked. And, according to their review, courts have only actually rejected the assertion of the privilege four times since 1953.

The compliant nature of the judiciary here is not completely surprising. Judges are understandably reluctant to second-guess government claims about something as important as national security, perhaps rightly so. But this reluctance does have consequences. If the courts don't keep the executive honest, the only check is the executive's self-restraint, which, we are coming to learn, can't always be counted upon.

Indeed, United States v. Reynolds, the Supreme Court decision first recognizing the legitimacy of a state secrets privilege, is also apparently an object lesson in how the privilege can be misused. Decided in 1953 at the height of the Cold War, Reynolds was brought by the widows of three civilians who died when the Air Force plane they were on crashed. The widows sued the Air Force for negligently maintaining the aircraft and tried to obtain accident reports from the government to further their suit. Unfortunately for the widows, in addition to their husbands, the plane was also carrying secret electronic equipment. Citing the presence of this top-secret equipment, the government refused to turn over the documents, claiming that doing so would jeopardize national security. The Supreme Court upheld the government's refusal, and the state secrets privilege was born.

As it turns out, the documents didn't really back up the Air Force's claims. In 2000, the children of the original plaintiffs got hold of the reports their mothers had sought when the documents became declassified. Nothing in these documents appeared to bear at all on national security. They were, however, filled with evidence of negligence, all of which was nicely summarized by the Air Force's straightforward conclusion that "the aircraft is not considered to have been safe for flight."

In addition to the fact that the government is using what was once largely an evidentiary privilege to dismiss entire lawsuits, the administration's sweeping use of the Reynolds privilege is disturbing because it's also using it to dismiss even those lawsuits in which the underlying facts have already received substantial publicity.

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.

Henry Lanman is a lawyer in New York City.