[Infowarrior] - State-secret overreach

[Richard Forno]

State-secret overreach
http://www.latimes.com/news/printedition/opinion/la-op-siegel16sep16,1,78681
13.story?track=rss

For too long, judges have allowed the government to hide mistakes behind
national security.
By Barry Siegel
September 16, 2007
On Aug. 15, before an overflow crowd at the federal courthouse at 7th and
Mission in San Francisco, three judges from the U.S. 9th Circuit Court of
Appeals listened to lawyers argue whether the once-obscure "state secrets
privilege" gives the government an absolute right to withhold documents,
bury evidence and block lawsuits.

The government claimed the privilege in connection with two cases
challenging the Bush administration's domestic surveillance programs,
including its controversial warrantless wiretapping operation. Deputy
Solicitor General Gregory Garre, arguing for the government, maintained that
the cases should be dismissed instantly, no questions asked, because a trial
would endanger national security. Presenting any evidence in a courtroom, he
said, would put the country at "exceptionally grave harm."

When it comes to national security, Garre said, judges must give the
executive branch the "utmost deference."

After listening to such claims for a while, the senior judge on the
appellate panel, Harry Pregerson, asked Garre whether the state secrets
privilege meant that the courts must simply "rubber stamp" the decisions of
the executive. "The bottom line here is the government declares something is
a state secret, that's the end of it," Pregerson said. "The king can do no
wrong."

"This seems to put us in the 'trust us' category," said Judge M. Margaret
McKeown, referring to government assurances that the surveillance program
didn't violate the law. "We don't do it. Trust us. And don't ask us about
it."

This apparent skepticism on the part of Pregerson and his fellow judges was
highly unusual and may signal a new willingness to question government
assertions about national security. In recent years, as the Bush
administration has relied more heavily on the state secrets privilege to
have cases thrown out of court, judges have generally been willing to
concede meekly to the government's argument. Could it be that the government
has finally overplayed its hand?

The battles over the state secrets privilege go back more than 50 years.
Close your eyes and it could be Aug. 9, 1950. In a federal courthouse in
Washington that humid day, others faced a similar issue during litigation
over the crash of an Air Force B-29 two years earlier near Waycross, Ga. A
lawyer for the widows of three civilian engineers who died in that crash
wanted the Air Force's accident report, expecting it would shed light on the
cause of the disaster. An assistant U.S. attorney balked, arguing that the
report could not be released without seriously hampering national security.
He presented Air Force affidavits that said the plane was "engaged in a
highly secret mission" and "carried confidential equipment." In response, a
skeptical U.S. District Judge William Kirkpatrick said, "I only want to know
where your argument leads." The assistant U.S. attorney made plain where it
led: "We contend that the findings of the [executive branch] are binding . .
. upon the judiciary. You cannot review it or interpret it. That is what it
comes down to."

Kirkpatrick did not agree. He found the government in default and awarded
the widows damages. A three-judge panel of the U.S. 3rd Circuit Court of
Appeals unanimously affirmed his decision. But when the matter came before
the U.S. Supreme Court, it reversed the lower courts, for the first time
formally recognizing a state secrets privilege in the landmark ruling U.S.
vs. Reynolds. The government shouldn't have absolute autonomy, wrote Chief
Justice Fred Vinson in his 1953 opinion, but if the government can satisfy
the court that a "reasonable danger" to national security exists, judges
should defer and not force the government to produce documents -- not even
for private examination in the judge's chambers.

So it began. Slowly and haltingly, at first, then not so slowly. Between
1953 and 1976, the government invoked the privilege in only five cases;
between 1977 and 2001, in 59 cases. In the last six years, the Bush
administration has invoked it 39 times, according to the best available
count -- or more than six times every year. Along with the numbers, the
scope and definition of what constitutes a state secret has expanded -- now
including what one judicial decision described as "bits and pieces of
seemingly innocuous information" that might form a revealing "mosaic."

Government lawyers have found that merely waving the Reynolds flag in the
background for effect gains them deference from judges. Rarely has a court
rejected a government claim of privilege.

As a result, Vietnam War protesters subjected to surveillance and
wiretapping have not been allowed to sue, blocked by rulings in 1978 and
1982. The retreat of the judiciary has also meant that accused enemy
combatants and victims of "extraordinary rendition," such as Maher Arar and
Khaled El-Masri, have not been able to protest their treatment in court. Nor
have a variety of penalized whistle-blowers and federal employees making
discrimination claims against the government. Nor have contractors embroiled
in business conflicts with the military, a scientist defamed by accusations
of espionage or a sixth-grade boy investigated by the FBI for corresponding
with foreign countries during a school project.

Over time, the desire to protect military secrets has started to look a good
deal like the impulse to cover up mistakes, avoid embarrassment and gain
insulation from liability.

How to know, though? Most often, judges rule blindly, without looking at the
disputed documents underlying the state secrets claims. Since 1993, they
have required in-camera review in less than an eighth of cases. They choose,
instead, to trust the government -- the ultimate act of faith. They opt for
deference; deference lets them off the hook. No one wants to be the judge
whose decision leads to an apocalyptic disaster. Better to say, we're not
equipped, we can't tell whether it implicates national security, we need to
leave this to those who know. This is understandable: In an ominous world
full of national security threats, it is hard indeed to deny the government.

Yet the Bush administration may finally have escalated the dubious use of
the state secrets privilege to a point of resistance. In the summer of 2006,
U.S. District Judge Vaughn R. Walker in San Francisco and District Judge
Anna Diggs Taylor in Detroit ventured to deny government state secrets
claims in the domestic surveillance and eavesdropping cases. "It is
important to note that even the state secrets privilege has its limits,"
Walker wrote. "While the court recognizes and respects the executive's
constitutional duty to protect the nation from threats, the court also takes
seriously its constitutional duty to adjudicate the disputes that come
before it. . . . To defer to a blanket assertion of secrecy here would be to
abdicate that duty."

It is Walker's opinion (along with one from Oregon) that came on appeal
before the three-judge U.S. 9th Circuit panel last month. By then, the U.S.
6th Circuit had already reversed Taylor's decision, ruling that the
plaintiffs there had no legal standing because the state secrets privilege
prevented them from learning if they'd been targets of wiretapping. Now, the
government wanted Walker's opinion reversed too. But judicial deference, for
once, did not seem to be in the air. According to news reports, Pregerson (a
President Carter appointee) sounded downright irritated; judges McKeown and
Michael Daly Hawkins (President Clinton appointees) at the least were
doubtful.

Pregerson wondered what roles judges were to play when the executive branch
invoked state secrets: "Who decides whether something is a state secret or
not?"

Hearing the deputy solicitor general talk of "ultimate deference" due the
executive branch, Pregerson asked: "What does 'ultimate deference' mean? Bow
to it?"

That, above all, is the question before the members of the 9th Circuit
panel. As they ponder, they would do well to consider Judge Kirkpatrick's
response to the same question in August 1950 -- and to what we now know
about the government's state secrets claim those many years ago.

Declassified half a century later, the disputed B-29 accident report turned
out to tell a tale of military negligence -- maintenance failures, missing
heat shields, cockpit confusion -- not one of national security secrets
about a radar guidance system. The government, it seems, was seeking to
cover its embarrassment and hide its mistakes, not to protect the country's
security.

This revelation has helped fuel calls for reform by legal scholars, public
interest groups and the American Bar Assn. It should also inspire the 9th
Circuit panel in the current cases to think long and hard before trusting
the government or accepting its claims. In a system of three separate but
equal powers of government, it's time for the judges to do their job.

Barry Siegel, a former Times national correspondent, directs the literary
journalism program at UC Irvine. His book on U.S. vs. Reynolds and the state
secrets privilege, "Claim of Privilege," will be published next year.