[Infowarrior] - JSG: Secrecy Mustn't Crush Rule of Law

[Richard Forno]

Secrecy Mustn't Crush Rule of Law
By Jennifer Granick
02:00 AM Jun, 21, 2006
http://www.wired.com/news/columns/1,71212-0.html

Are there any legal limits to what the executive branch can do in the name
of national security, or is it anything goes?

In separate federal lawsuits challenging the warrantless surveillance of
American citizens, the Bush administration argues that courts must dismiss
cases claiming that the National Security Agency has broken the law because
those claims implicate "state secrets."

On Friday of this week, U.S. District Judge Vaughn Walker sitting in San
Francisco will hear arguments on the issue in Hepting v. AT&T, a class
action claiming that the telecommunications giant has been collaborating
with the NSA in illegally eavesdropping on millions of Americans' calls and
e-mails. (Disclosures: Last week, professor Susan Freiwald and our Stanford
Center for Internet and Society filed a law professors' amicus brief on
behalf of the plaintiffs in Hepting. Wired News has also filed motions to
intervene in the case and asked the court to make public evidence filed
under seal of AT&T's alleged wiretapping activities.)

Later in the month, Judge Anna Diggs Taylor in Detroit will hear similar
arguments in ACLU v. National Security Agency (NSA), a case brought against
the NSA by journalists claiming the surveillance program has dried up
sources and interfered with the plaintiffs' ability to gather news.

The stakes are high, and sight of them should not be lost among the
citations to cases from the 1870s or the redacted pleadings referencing
classified arguments and evidence lodged in a secure location in Washington,
D.C., for sequestered review by the sitting judges.

The way the government has asserted the state-secrets privilege means these
courts will do more than answer the already serious question of what
protection official secrets deserve in a democratic government. The judges
will be deciding whether the rule of law applies to any party, whether an
agency of the government or a private company, acting in the realm of
national security.

The government has already been wildly successful in using the state-secrets
privilege to completely shield itself from appropriate punishment for
shocking and illegal behavior in El-Masri v. Tenet.

Khaled El-Masri was abducted, sodomized and beaten over five months of
detention at the hands of CIA agents or their operatives. Eventually, the
government realized it had kidnapped the wrong person and, luckily, released
him.

El-Masri sued the head of the CIA, claiming the agency authorized his
kidnapping and torture as part of the U.S. "rendition program." Though
German prosecutors back up El-Masri's story and though the United States has
admitted and lauded the practice of rendition, the government successfully
moved to dismiss the lawsuit on the grounds of state secrets.

The trial judge dismissed El-Masri's case because litigating it would reveal
operational details as to means and methods, persons, companies or
governments involved. I suppose we're fortunate the CIA operatives didn't
kill El-Masri to protect the world from learning about the "operational
details" of rendition. Though if they had, his family would have had no
legal recourse against his murderers.

The government is attempting to build on the anomaly of its victory in
El-Masri v. Tenet to push for complete dismissal on state-secrets grounds in
other cases where it has acted illegally. If this claim prevails, then
executive agencies can act with impunity if part of a national intelligence
effort, regardless of efforts by Congress, the courts or the international
community to set rules of engagement. This Friday, Walker will take the
issue up with lawyers from the government, AT&T and the Electronic Frontier
Foundation.

In Hepting v. AT&T, the EFF represents a class of plaintiffs comprised of
AT&T customers. Based on documents from Mark Klein, a former AT&T employee,
the plaintiffs claim that AT&T has been illegally diverting their
communications to the NSA.

The United States moved to intervene in the case, arguing that the claims
should be dismissed because litigation would disclose intelligence
information, sources and methods. The government claims neither it nor AT&T
may confirm or deny the existence, scope and potential targets of
intelligence activities because there is a reasonable danger that national
security would be harmed by the disclosure. If this claim is true, then the
court must dismiss the case.

Thus, much of the argument Friday will be about whether the case requires
information that is, in fact, secret.

The public knows that telecommunications carriers like AT&T have both the
capability and often the legal responsibility to intercept communications,
and that the government often asks them to do so. The fact that the
government is listening to phone calls and that AT&T is involved is not
secret.

The only issue is whether AT&T eavesdropped with court authorization.

But court authorization isn't secret either. It's a piece of paper signed by
a judge. Sensitive details contained in that court order can be excised,
received under seal, reviewed by the judge in chambers (in camera review) or
handled any number of ways that courts use to deal with confidential
information.

The public knows this case is a challenge to the government's previously
secret program of warrantless surveillance. But the plaintiffs have had to
argue they can prove AT&T illegally intercepted its customers' private calls
without needing any evidence of the government's surveillance program in
order to avoid the state-secrets ax.

It's one of the many Kafkaesque turns in the case, though certainly no more
strange than the government's assertion that the court -- even if it were to
review the evidence outside of the public eye and find the government acted
illegally -- could not then award damages because to do so would confirm the
plaintiffs' allegations.

One improvement might be to disfavor claims of state-secrets privilege in
cases directly challenging the legality of U.S. conduct in the
national-security arena. This rule particularly would make sense when the
facts on which the plaintiff is depending to make his case are already
available from unclassified sources. El-Masri knows what the CIA did to him,
and German authorities back him up. Klein's documents showing AT&T's mass
surveillance are in the public record. The only secret is whether the
defendant -- the CIA, the NSA or AT&T -- has a legitimate excuse.

This idea arguably goes against case law stating that if "the very subject
matter of the action" is a state secret, then the case should be dismissed.
That language comes from an 1875 case involving a lawsuit for breach of a
contract to pay a secret agent under a government contract for clandestine
services, and a 1953 negligence lawsuit brought by widows whose husbands had
been killed in the crash of a military airplane carrying electronic
surveillance equipment. However, in those cases, the state secret was
separate and apart from the plaintiffs' claims of wrongdoing. In El-Masri
and the pending surveillance cases, the government's illegal behavior is the
very thing it seeks to keep secret.

Perhaps my idea also seems uncomfortably suspicious of national-security
claims at a time when international terrorism is on the rise and national
security is of pre-eminent importance. The healthier skepticism I suggest
does not mean courts will disfavor national-security claims that arise in
the normal course of litigation, but only that they will be suspicious of
state-secret claims that shield government wrongdoing from judicial review
and remedy, particularly when the plaintiffs have made out a case from
independent investigation, record collection and expert testimony.

The judges in the Hepting and ACLU cases have to draw the line between
protecting legitimate state secrets and protecting illegal activity
connected to the war on terror. Illegal programs like rendition and
warrantless wiretapping do not keep America safe. They undermine our
democracy by violating civil rights and ignoring the rule of law.

- - -
Jennifer Granick is executive director of the Stanford Law School Center for
Internet and Society, and teaches the Cyberlaw Clinic.