A three-judge panel of the 9th Circuit Court of Appeals heard from some funny government lawyers Wednesday who still think "trust me" is a persuasive argument. They were insisting on the dismissal of a series of challenges to the Bush administration's warrantless wiretapping programs, on the grounds that the very existence of the lawsuits pose a threat to national security. (You can listen to the argument at this link.)
The consolidated cases represent appeals from various people who claim to have evidence that they've been spied on. Plaintiffs in one case seek to offer proof of a creepy secret spy room from which AT&T allegedly assisted the NSA in conducting a massive surveillance dragnet. Plaintiffs in a second case actually laid hands on a top-secret government phone log of intercepted calls between an Islamic charity and its American supporters, before the administration demanded its return.
But the secret spy room is a secret, and the secret phone log—although it was accidentally turned over to the plaintiffs—is also a secret. (So much so that it is now "stored in a bombproof safe in Washington and viewed only by prosecutors with top secret security clearances and a few select federal judges.") The secret phone document is so very secret that government officials had to shred all drafts of the plaintiffs' brief in the case—including a top-secret banana peel.
According to government lawyers, even to discuss the programs at issue in this case is to harm the national interest. Whether or not they even exist is also a secret. Any proof of the programs' existence cannot be tested because of the secrecy thing. One of the judges on the panel, M. Margaret McKeown, complained of feeling "like I'm Alice in Wonderland" at Wednesday's arguments. No wonder. Government lawyers increasingly behave less like attorneys than grim constitutional bouncers.
Early in the argument in the first case, Hepting v. AT&T, Judge McKeown asked Deputy Solicitor General Gregory G. Garre whether President Bush still stood behind his statement that the government does no domestic wiretapping without first obtaining a court warrant. Garre said yes. McKeown wondered aloud how it can possibly be "a state secret" that that the government is not intercepting millions of customers' communications illegally. How can the absence of an illegal program be a secret?
In a rhetorical flourish that would impress even the March Hare, Garre responded that if the appeals court allowed that issue to proceed to trial, the plaintiffs would be "forcing the government to prove a negative ... that takes us precisely into the heartland of state secrets." Follow along, little children: If the government had to prove that something that doesn't happen, doesn't happen, it would have to divulge everything that does happen. Um, how's that?
Judge Harry Pregerson then asked Garre whether the courts must rubber-stamp every single executive-branch determination of a state secret. Garre helpfully parsed the difference between courts giving "utmost deference" to executive-branch claims and "absolute deference." Apparently there is a difference. It smells a lot like cherry tart.
The through-the-looking-glass analysis also kicked in during the second argument of the day, al-Haramain v. Bush, relating to a top-secret document—accidentally turned over to the plaintiffs—that certainly suggests the Islamic charity in question was subject to surveillance. Justice Department attorney Thomas Bondy, representing the Bush administration, argued that the al-Haramain plaintiffs were forced to rely on their fallible human memories of the call logs at issue, since they had been required to return the actual secret documents to the government. Because the only way to confirm the accuracy of their recollections would require matching those recollections against the actual secret document, which is—say it with me now—a secret, there is no way to test their claims.
Bondy also said—apparently with a straight face—that the government would not confirm or deny whether individual plaintiffs were being surveilled by the secret nonexistent NSA program, because the whole point is to preserve that ambiguity. Or, as he put it, "it will make certain things certain that are not certain."
Now, I am for more Mad Hatters in the law as a general matter. Off with his head! But arguments like those being made in the NSA cases—arguments that executive claims of state secrets are, like rabbit holes, bottomless places where all logic and scrutiny fail—are more troubling today than ever. Because now Jose Padilla—the details of whose abuse in government detention is also a "state secret"—faces the prospect of a lifetime in prison.