As the Senate debates a fix to the Foreign Intelligence Surveillance Act this week, the battles rage fiercest over whether to grant immunity from liability to private telecom companies that assisted the administration with terrorist surveillance (aka domestic eavesdropping). Fans of immunity, which would be retroactive, have staked their position on a claim with which it's hard to disagree. If the telecom companies really acted in good faith based on the Bush administration's legal representations, they say, then it's the administration that should be on trial. Thus, Sen. Jay Rockefeller, D-W.Va., has stated that he supports immunity because he's seen the legal documents the administration gave the telecoms that vouched for the program's legality. Sens. Dianne Feinstein, D-Calif., and Arlen Specter, R-Pa., have hinted the same. The president himself cares so deeply about retroactive immunity that he's said he'll veto a FISA bill that gives him everything he wants but that.
Think this is all because the administration cares about its friends and campaign contributors in the telecom lobby? We don't. Because if that's all that mattered, there would be a much simpler solution, which wouldn't require the president to threaten to veto a bill that he claims is essential to protect America. When the administration first asked the telecoms to help with its surveillance activities, the companies demanded—and received—written assurance from the White House and Justice Department that the program was lawful. If the administration really cared about the telecoms, it would simply allow them to use these legal documents to defend themselves in court.
But it won't. Instead, the administration invokes a little-known rule of evidence called the state secrets privilege, which allows the executive branch to avoid revealing evidence—or even litigating cases—if it claims that doing so might reveal a "state secret." Bush lawyers have used the state secrets privilege to convince a federal appeals court to dismiss an ACLU lawsuit against the National Security Agency asking a court to declare the spying program illegal. And in the cases that have been brought against the telecoms, the administration has invoked the same privilege to argue that courts can't let the cases go forward because the telecoms would be in the unfair position of not being able to defend themselves—because, of course, the administration won't let the companies turn over the relevant documents. Retroactive immunity isn't about letting the telecoms off the hook. It's about hiding the administration's own legal claims from any judicial or public scrutiny. The administration wants to keep these cases out of court so it can cover up for itself.
Congress can protect the telecoms without falling for this trick. In reforming FISA, Congress should enact a comprehensive law governing the state secrets privilege, one that protects our national security and also allows litigants to make their case in court. Congress figured out this sort of balancing act for criminal cases decades ago when it passed the Classified Information Procedures Act; now it's time to do the same for civil suits. We agree with the administration that state secrets should be protected at all costs. But this administration can no longer be trusted to use the privilege to protect only genuine secrets. It's instead covering up its own dubious legal reasoning—not just in the domestic surveillance cases, but also to avoid scrutiny of the torture and rendition programs at issue in the cases of Khalid El-Masri and Maher Arar. Someone other than the executive must be able to review whether the executive is abusing the privilege.
A little history shows why. The state secrets privilege is as old as the republic, but its modern history dates from the 1953 case United States v. Reynolds. In that case, the Supreme Court allowed the Truman administration to withhold a secret report on an airplane crash that had killed three Air Force contractors because the administration claimed it contained state secrets. The court did not require the administration to show the report to a judge, instead taking the executive branch at its word. We now know that the Truman administration was misleading the court in Reynolds—the report (recently declassified) contained embarrassing information suggesting that the government was negligent in the crash, but no state secrets. When it mattered, though, nobody knew, because nobody reviewed the evidence.
Since Reynolds, the state secrets privilege has become something of an automatic win for the government. If litigating a case might require a court to consider secret evidence, the government will ask the court to dismiss the case early, before looking at documents and the like. Often, the judge never reviews the evidence in question. And even when he or she does, the government need not provide an unclassified version. If a defendant might need allegedly secret evidence to prove his innocence, as is the case with the suit against the telecoms, the administration uses that fact to argue for throwing out the case. We don't think any administration should skate away like this.
A solution to the state secrets problem should achieve three goals: ensuring the administration doesn't abuse the privilege; getting justice for litigants; and guaranteeing the secrecy of genuine state secrets.
Here's how a legislative fix we've suggested to the Senate judiciary committee would meet these requirements. First, in a secure proceeding, a court would review evidence the administration claimed was protected by the state secrets privilege. The court would rule on what really must be kept secret. The law would also require the president to tell Congress when and how he is using the privilege, so that even if a court allowed the executive to keep evidence away from litigants, Congress could provide a political check.
Second, a new state secrets privilege act would require the government to create unclassified versions of the evidence where possible, so that the litigation could proceed. It would end the practice of dismissing cases at the get-go based on the administration's blanket state secret claims. Instead, the law would provide for flexible procedures so that the government could avoid admitting or denying allegations in answering a complaint if it felt doing so would endanger national security. But plaintiffs would always get a chance to make their case, and defendants would always get a chance to show a court their defense.
Finally, the new act would include extensive procedures to guarantee that actual state secrets are protected. It would take advantage of procedures already in place in criminal cases, through the Classified Information Procedures Act we've mentioned, that govern the transmission and safekeeping of secret evidence. It would also allow the government to appeal a state secrets ruling by a lower-court judge immediately, in case such a ruling might harm national security. And Congress would allow the government to get a waiver in extreme cases, in which even showing the evidence to a federal judge under seal might endanger national security.
Congress has the constitutional authority to enact all of these provisions: The Constitution explicitly grants the legislature the power to enact regulations concerning the jurisdiction of federal courts. Last month, the Supreme Court passed up its own opportunity to curb abuses of the state secrets privilege when it declined to consider El-Masri's torture and rendition case. The ongoing FISA debate gives Congress an opportunity to step in where the court has failed to. If Congress is serious about allowing the telecoms to defend themselves, while holding the administration accountable, fixing the state secrets privilege is the place to start. Then, it'll be time for the administration to state its secrets.