http://www.latimes.com/news/opinion/sunday/commentary/la-op-siegel23sep23,0,3547382.story?coll=la-sunday-commentary
From the Los Angeles Times
State-secret overreach
For too long, judges have allowed the government to hide mistakes behind national security.
By Barry Siegel
September 23, 2007
Because of a production error, several lines were dropped from Barry
Siegel's article "Secrets and Lies" in last week's Opinion section,
making parts of it difficult to follow. The entire article is reprinted
here.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.