ACLU v. National Security Agency: Why the "State Secrets Privilege" Shouldn't Stop the Lawsuit Challenging Warrantless Telephone Surveillance of Americans

By JOHN W. DEAN
Friday, Jun. 16, 2006

The American Civil Liberties Union is the lead plaintiff in a federal lawsuit requesting that the National Security Agency (NSA) be enjoined from its ongoing violation of the Foreign Intelligence Surveillance Act (FISA) via its program of telephone surveillance of Americans. Joining the ACLU as plaintiffs are a number of attorneys, scholars, journalists and others who have been adversely affected by the program. The plaintiffs argue that the NSA program violates not only FISA, but also the Constitution's First and Fourth Amendments.

The U.S. Government, through its Department of Justice attorneys, has been desperately trying to get this case -- currently pending in the U.S. District Court for the Eastern District of Michigan -- dismissed. To this end, DOJ attorneys have invoked the "state secrets privilege" -- claiming, in essence, that the government cannot explain its actions because they involve national security.

DOJ attorneys have used this strategy successfully with FBI translator Sibel Edmonds twice, to prevent her from testifying about misconduct in the FBI. They used it again with Maher Arar, a Canadian who was arrested when passing through JFK airport, returning from his vacation, only to find himself "renditioned" to Syria, where he was tortured before being released because he was innocent. And they used it once again with Khalid El-Masri, the German citizen mistakenly arrested and flow to Afghanistan where he was detained, beaten, and tortured by the CIA.

But this time, the outcome may be very different. Because this is a case where the "state secrets" privilege plainly should not apply, and a case with a judge brave enough to rule that, in fact, it does not.

Indeed, if she so chooses, Judge Anna Diggs Taylor can do for America what the GOP-controlled Congress, and Republican-beholden federal judges, have thus far refused to do: She can require the Administration to comply with the law -- and in the process, she can actually examine the validity of the government's claim of "state secrets," rather than merely buying into assertions that national security is involved. Since such claims have been persistently abused by prior presidents, this kind of examination is long overdue.

The ACLU v. NSA Lawsuit, and The Judge Who Will Hear It

The ACLU's lawsuit simply calls for the NSA to follow FISA, which Congress made the exclusive means by which the Executive Branch can undertake electronic surveillance of Americans.

Unlike those judges who easily disposed of Edmonds, Arar and El-Masri, Judge Taylor plainly understands civil rights and liberties, as her biography well illustrates. She is a no-nonsense judge with a quarter century of experience on the federal bench. She has tossed lawyers out of her courtroom when they played delaying games in discovery (and she has been upheld by the Court of Appeals when doing so). She writes well-reasoned opinions that reveal deep sympathy for victims of civil liberties violations. And she certainly has no fear of being reversed by an increasingly conservative U.S. Court of Appeals for the Sixth Circuit, which has jurisdiction over her court.

In short, if ever there was a federal judge to stand up to the President of the United States to tell him he must obey the law, and to cut through the nonsense that typically surrounds the invocation of the "state secrets" privilege, it is Judge Anna Diggs Taylor.

The ACLU argues that "Administration officials have publicly conceded all of the facts necessary" for the judge to rule on the plaintiffs' statutory and constitutional claims. Accordingly, it has moved for partial summary judgment in the case.

The Administration sought a stay with respect to the motion, but in an order of May 31, Judge Taylor refused the stay, and on June 10, she heard oral argument. Still upcoming in the case is another hearing, to be held on July 12, on the Administration's motion to dismiss the case because it involves state secrets. It seems likely that Judge Taylor will not rule on either the ACLU's motion, or the Administration's, until some time after that second hearing -- so readers can likely expect a ruling in late July, August, or September.

The Government's Arguments for Dismissal: Exceptionally Weak

The government has made two arguments in support of dismissing the case:

First, it claims that the plaintiffs do not have standing to bring their lawsuit, because their harm is speculative -- after all, they do not know whether they are actually being surveilled or not. And looking at FISA and its legal standards won't help them figure out whether they might be -- since the government has admitted it is flagrantly violating FISA.

The NSA should not be able to profit from the situation of fear and uncertainty it has created, by getting this suit dismissed on this ground -- especially since this kind of fear and uncertainty is exactly why First Amendment doctrine allows standing based on the "chilling effect." A reporter's or scholar's phone call may be very different when it is made under fear of surveillance, and in the knowledge that standards set out in wiretapping laws are being utterly ignored.

Relatedly, the DOJ attorneys argue that they cannot show the plaintiffs' lack of standing without jeopardizing national security. But what, exactly, do they mean? Is the DOJ unwilling even to admit that it is not surveilling the plaintiffs? And why would it bother to make such an admission, in the first place -- since as noted above, the plaintiffs' prior fear and uncertainty is a separate basis for standing here?

Second, the government claims that the "state secrets" privilege renders it unable to fully explain why, in fact, the NSA surveillance program is legal, because to do so would involve matters relating to national security. But this argument, too, is bunk. There was at least some scant basis for making the argument in the cases of wrongly detained and tortured individuals; the government could claim there, at least, that its ways of figuring out who to detain were a matter of national security. Here -- notwithstanding a 42-page document the Administration issued proclaiming the legality of the NSA program -- as the ACLU has argued, the Administration's own public admissions make it difficult to imagine what "secret national security" argument might be added to make blatantly illegal actions legal.

State Secrets: A Privilege Born on the Lips of a Lie

The ugly history of the "state secrets" privilege should also cause Judge Taylor to pause before considering allowing DOJ to get away with once again invoking it.

The state secrets privilege was first recognized by the Supreme Court in its 1953 ruling in United States v. Reynolds. Following the death of three civilian engineers involved in a B-29 crash while working for the military, their widows sought the accident reports and damages for their wrongful deaths. But the government refused to turn over the reports, claiming the mission was national-security-related, and to do so would reveal secrets that could harm the nation. The Reynolds Court, which took the government at its word, agreed, and dismissed the claim. The Justices explained the impossible position in which the reviewing court had been put: "The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect."

Fifty years after the Reynolds ruling, a daughter of one of the men killed in the B-29 crash, Judy Loether, discovered while surfing the Internet that the government had declassified the accident report, without deigning to let her know this fact. For $63, she purchased a copy from a private company. To her utter amazement, the accident report revealed that no state secrets whatsoever had been involved; rather, the only secret was the gross negligence by the military. It was an accident that should never have happened.

Following up on Loether's discovery, the lawyers involved in the Reynolds case filed a motion to underline the point that the government had perpetrated a fraud on the federal courts. Yet neither the Department of Justice nor the Supreme Court wanted to know anything about it. The motion was all but summarily dismissed.

Because of the increasing use of the "state secrets" privilege, it has been more closely studied in recent years. For example, University of Texas political scientists William Weaver and Robert Pallitto, after reviewing all the reported cases, have concluded that "the state secrets privilege … [is] now [being] judicially mishandled to the detriment of our constitutional system." This mishandling, they contend, is occurring because "the courts have unwisely acquiesced to executive power on this matter."

As one commentator nicely states it, the state secrets privilege was "born with a lie on its lips." When the government says "national security," the federal courts seem to cower. Yet anyone who has worked in this area knows that seldom is nation security truly at stake when the government claims it to be. Typically, the invocation of national security borders on being a hoax.

The Great "National Security" Ruse -- Illustrated by the Pentagon Papers Case

No government can operate in a fishbowl. And there is some information that is appropriately kept secret to prevent harm to the nation's security. But such secrets are rare. Very, very rare.

Tom Blanton, the executive director of the National Security Archive at George Washington University, recently wrote in the Los Angeles Times about how the government overuses national security classifications. He noted that the current deputy undersecretary for counterintelligence grudgingly conceded to Congress that at least half of all classified information was overclassified; 9/11 commission chairman Tom Kean has said that "three-quarters of what I read [when studying the government's preparation for terror attacks] that was classified shouldn't have been"; and President Reagan's executive secretary for his National Security Council, Navy Captain Rodney McDaniel, has testified that only ten percent of the document stamped secret were for "legitimate protection of secrets."

Captain McDaniel is being generous.

Probably the most egregious case, within my personal knowledge, of the government's employing the national security ruse was the landmark Pentagon Papers case, United States v. New York Times.

Serving, at the time, as counsel to the President, I watched as the government sought injunctions against the New York Times and The Washington Post to prevent further publication of the leaked study of the origins of the Vietnam War -- knowing full well that none of the government's lawyers involved actually knew what was in these documents.

The U.S. Attorney in the Southern District of New York had thought it unseemly to argue for a prior restraint upon the press -- the ultimate First Amendment violation -- without knowing why. I agreed, and tried to find out what the justification for seeking this extraordinary remedy might be. But the Defense Department refused to explain what was in the papers to anyone.

The Solicitor General is the government's most esteemed advocate -- often referred to as the tenth member of the Supreme Court because of the trust given his office. Yet the Solicitor General at the time, Irwin Griswold -- a former dean of Harvard Law School -- did not insist on knowing what was actually contained in the Pentagon Papers, and he never found out, even as he insisted on the importance of their continued secrecy.

Remarkably, Griswold told the High Court in June 1971, "I haven't the slightest doubt myself that the material which has already been published and the publication of the other materials affects American lives and is a thoroughly serious matter. I think to say that it can only be enjoined if there will be a war tomorrow morning, when there is a war now going on, is much too narrow."

Three justices were convinced, but six were not. The Pentagon Papers thus were published -- and America could read for itself, to see that no national security peril was posed.

No doubt Griswold was haunted by his less-than-candid advocacy in the Pentagon Papers case, for twenty-eight years later, he publicly recanted. In a 1989 Washington Post OpEd he wrote, "I have never seen any trace of a threat to the national security from the publication [of the Pentagon Papers]. Indeed, I have never seen it even suggested that there was such an actual threat…. It quickly becomes apparent to any person who has considerable experience with classified material that there is massive overclassification and that the principal concern of the classifiers is not with national security, but rather with governmental embarrassment of one sort or another."

In sum, the government has a well-documented and persistent history of abusing its claims of national security. Given this history, federal judges should not give the Executive Branch the benefit of any doubts.

It's true that the head of the Executive department or agency involved in claiming a state secret must personally attest to the national security issue. But if anyone believes that the Secretary of Defense, or the Director of National Intelligence, has the time or disposition to examine all the papers, and consider the problems involved, they simply do not understand how government works. These decisions, in fact, are made by bureaucrats (often with their own agendas).

Judge Anna Diggs Taylor's Dilemma

When Judge Taylor conducts the July 12 hearing on the Administration's invocation of the "state secrets" privilege as a basis for dismissing the suit, she will face a classic dilemma facing all federal judges who must rule on the "state secrets" privilege: How is the judge able to know whether the government is making a legitimate claim?

The ACLU seems correct that the government's factual admissions here make the case for FISA violation, in particular, rather cut-and-dried, as a legal matter. Accordingly, the invocation of the state secrets privilege appears more a sword than a shield: A method to dispose of the case without litigating the legality of the government's actions.

But the paradox of the state secrets privilege is that the government can invoke it without saying exactly why, and many federal judges -- and, as noted, government attorneys -- have met this invocation with deference, mindful of the constitutional separation of powers.

Such deference, however, has not been earned by the Executive Branch. Solicitor General Griswold was snookered by Defense Department bureaucrats. Government officials admit that not less than half -- if not as much as ninety percent -- of classified information is incorrectly classified. Yet many federal judges follow the line of state secrets cases that are obsequious to the Executive Branch's claims when they relate to national security. They should not. By doing so, they are not truly fulfilling their role as constitutional co-equals of the Executive Branch. They are not checking, nor are they balancing. They are merely abdicating.

Many judges seem to believe that they must abdicate, for they are not competent to make determinations regarding national security matters. The truth is that, in fact, they are probably more competent than the agenda-driven officials within the Executive branch who make such determinations. Judges are experienced at weighing facts and their implications, and they certainly have the power to gather the information necessary. And life-tenured federal judges -- beholden to no one, and in no fear of job repercussions -- are able to be far more impartial than Executive Branch officials can ever be. It is no surprise that Executive Branch officials are grossly overprotective of secrecy; for them, that is the safest course.

Tom Blanton noted in his essay that "judges have many tools at their disposal for inquiring into and testing the government's claims" when invoking the state secrets privilege, including appointing "special masters with expertise and security clearances." (Special Masters may be appointed by federal courts to report back to the court when complex factual matters arise.)

For example, Judge Taylor could appoint a team of special masters like the former co-chairs of the 9/11 commission, Tom Kean and Lee Hamilton, to assess the government's claims that it would have to expose "state secrets" in order to explain why plaintiffs do not have standing, and why the government is not really violating FISA -- despite its own public admissions that, in fact, it is.

Such a ruling could halt the growing abuse of the "state secrets" privilege by President Bush and Vice-President Cheney -- who have already used this privilege more aggressively than any presidency in history, and recently have only been increasing its use. While precise numbers -- because not all cases are reported -- are hard to come by, a recent study reports that the "Bush administration has invoked the state secrets privilege in 23 cases since 2001." By way of comparison, "between 1953 and 1976, the government invoked the privilege in only four cases."

An Overwhelmingly Important Case -- and Hearing

The eyes of the nation should turn to Judge Anna Diggs Taylor's courtroom on July 12. It is not an exaggeration to say that Judge Taylor, in many ways, will be ruling on the fate of the nation. We are sliding down the slippery slope.

I am reminded of the words of Martin Niemoeller, the German U-Boat captain and later Lutheran pastor and philosopher, who was asked by a student "How could the Holocaust happen?" Niemoeller famously explained how easy it was to tolerate injustice when people do not believe they are involved: "First they came for the Communists, but I was not a Communist so I did not speak out. Then they came for the Socialists and the trade unionists, but I was neither, so I did not speak out. Then they came for the Jews, but I was not a Jew so I did not speak out. And when they came for me, there was no one left to speak out for me."

Are these words properly invoked in the "state secrets" context? Ask Maher Arar and Khalid El-Masri -- tortured by mistake, despite their innocence, then prevented from holding the government responsible in court, on the ground that the very mistake that caused their terrible suffering was a "state secret."

Judge Anna Diggs Taylor will hopefully speak out -- for all of us.


John W. Dean, a FindLaw columnist, is a former counsel to the president.