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The Suit Challenging the NSA's Warrantless Wiretapping Can Proceed, Despite the State Secrets Privilege: Why The Judge Made the Right Call

Tuesday, Aug. 15, 2006

The controversy over the Presidentially-authorized NSA warrantless wiretapping program has now moved into the courts - with a suit alleging that the program violated the First and Fourth Amendments, as well as a number of federal statutes, including the Foreign Intelligence Surveillance Act (FISA). The defendants include AT&T and now, the federal government.

On July 20, a significant decision in the case was handed down by U.S. District Judge Vaughn Walker. Walker rejected the government's motion asking him to dismiss the suit prior to any civil discovery, based on the "state secrets" privilege -- which protects against disclosures of information that could imperil national security.

In a two-part series of columns, I'll explain why I believe Judge Walker was absolutely right to decide as he did.

The Supreme Court Has Repeatedly Rejected Executive Exclusivity Regarding War-on-Terror Issues

The government's motion essentially repeated the same argument the Bush Administration has made repeatedly - that "war on terror" matters ought to be handled exclusively by the Executive Branch, with minimal, if any, participation by Congress or the federal judiciary.

So far, each time that argument has made its way up to the Supreme Court -- in Rasul v. Bush, and now in Hamdan v. Rumsfeld - the Court has rejected it.

In Rasul, decided in 2004, a 6-3 majority of the Court affirmed the Court's jurisdiction over habeas corpus petitions by Guantanamo Bay detainees. Granted, the Administration, through delay, got a large portion of what it had wanted anyway - the ability to hold detainees for years without charges - and granted, the Court did not invalidate this kind of indefinite detention. But Rasul at least ensures that the courthouse door will be open for similarly situated detainees in the future, whose cases ought to proceed much more quickly than Rasul itself did, now that the threshold issue of their right to sue is settled.

In Hamdan, decided on June 29 of this year, a 5-3 majority of the Court (with Chief Justice Roberts sitting out) held that the President's plan for military commissions not only needed Congressional approval to go forward, but also violated the Geneva Conventions. (The Court also affirmed its own jurisdiction over the case despite a Congressional statute that some claimed - speciously, in my view -- had stripped it of that jurisdiction.) As with Rasul, the Hamdan decision was long in coming, but nonetheless extremely significant both as a precedent, and as a reaffirmation of Congress's and the federal judiciary's respective roles.

Not Only Recent Precedents, But a Longstanding One, Support the Judge's Decision

It seems possible that Judge Walker's decision might be upheld by the Supreme Court (though by a slim majority) if it ever reaches there. For not only the Rasul and Hamdan decisions, but also a decades-old Supreme Court decision, Reynolds v. United States, support the idea that the Executive simply does not have the one and only say-so when it comes to the state secrets privilege.

In Reynolds, decided in 1953, the Court already foresaw that the Executive might try to get a rubber stamp from the courts for state secrets claims, and said that no such stamps would be forthcoming. The Court stressed, instead, that "[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege…." (Emphasis added.) This language clearly implies that the court can't just accept the Executive's word for it when it claims that privilege is warranted in a given case or situation; it must undertake an independent factual inquiry of its own.

It's just this kind of independent factfinding that has been anathema to the Bush Administration, which would prefer to make, for instance, its "enemy combatant" certifications without any judicial review at all. Failing that, the Administration has sought a rubber stamp from courts, asking them to simply review affidavits from executive branch officials containing conclusory claims that a given person is an enemy combatant.

But Reynolds makes no bones about what the legal rule is: When it comes to the state secrets privilege, independent factual determinations by the court are absolutely necessary, and rubber stamps must be thrown out the window.

That should be no surprise: What's surprising is the Bush Administration's position that it should be able to "certify" facts that the federal courts cannot question, rather than submitting to courts' basic function of assessing evidence for themselves.

In our constitutional system, courts are not puppets, but independent actors in their own right. As Judge Walker put it, "the court has a constitutional duty to adjudicate the issues that come before it." And "adjudication" means hearing evidence, and making independent decisions -- not just reading papers that are filed, and dismissing a case whenever the government asks you to.

The Court's Odd, Delicate Position: Examine the Case for the State Secrets Privilege without Unduly Violating State Secrecy

Reynolds does add a caveat when it stresses that the court must make its own determination as to whether circumstances supporting the privilege exist: The court ought to do so "without forcing a disclosure of the very thing the privilege is meant to protect." Indeed, the Reynolds Court made clear that it meant that a disclosure should not be made even to the judge making the determination.

The court can easily prevent disclosure to persons other than the judge by examining government submissions ex parte (that is, without allowing the other side - here, the plaintiffs - to weigh in or even see the government submission) and in camera (that is, in his own chambers, without any formal court filing, and without even showing the material to other court personnel such as secretaries, deputies, and law clerks).

But Reynolds suggests that even an ex parte, in camera review by the judge can violate the state secrets privilege.

Reynolds May Be Mistaken, But It Remains the Law

To me, this seems wrongheaded: If we can't even trust our federal judges - who've been nominated by the president, gone through careful pre-confirmation vetting, including by the FBI, and then confirmed by the Senate - to see our state secrets, then we must have some pretty disturbing state secrets; they've got to be the kind that might cause even a federal judge to violate the law and go to the press.

Granted, there may be a separation of powers concern - that is, a concern that counsels allowing the Executive to keep some of its secrets from other branches, even if those other branches could be trusted with them, simply to enhance the Executive's independence. But with cases raising state-secrets issues few and far between, how much of an incursion is it, really, to allow judges, in these few cases, to see Executive materials - especially when the alternative is that the law isn't enforced, and justice isn't done?

In the end, do we really want to keep secret the kind of secrets the Executive would want to keep even from the federal courts? After all, anything that shocking probably violates the Geneva Conventions, or is pretty unconscionable, anyway. I'd suggest that the kind of secrets that even federal judges might be tempted to blab are the kind that probably shouldn't ever have been kept in the first place.

Recent secrets that might have fallen into this category could include evidence of the abuse at Abu Ghraib, of the CIA's secret prisons abroad, and of the U.S.'s use of, or complicity in, a foreign government's use of, torture. (And indeed, as Judge Walker notes in his opinion, a suit challenging the government's "extraordinary rendition" program was recently dismissed precisely because it implicated the state secrets privilege as currently construed.)

Whether or not readers are persuaded by my arguments here, however, it's clear that the Supreme Court wasn't persuaded by similar arguments in Reynolds. Current law, therefore, is that to even look at the government's state-secrets material himself, the judge has to find "a strong showing" that the unseen material is necessary to the plaintiffs' case. And even with a strong showing of necessity, a judge cannot force disclosure if he is "ultimately satisfied that military secrets are at stake."

In the second of this series of columns, to appear on August 29, I will discuss Judge Walker's conclusions and the specific procedures he proposes to both honor state secrets, and ensure that any constitutional violations are addressed.

Julie Hilden, a FindLaw columnist, graduated from Yale Law School in 1992. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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