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Secrecy Mustn't Crush Rule of Law


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Circuit Court columnist Jennifer Granick
Circuit Court

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.

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