State Secrets in the Sunlight
Cross-posted from The Hill Blog
March 26, 2008
In February and March this year, two bills on an obscure
federal-court rule of evidence were introduced in the House and the
Senate. This arcane corner of federal procedural law-the "state
secrets" privilege-has far-reaching consequences. It is a cornerstone
on which the "legacy" of the Bush Administration is now being built.
The "state secrets" privilege is used by the government to ask
courts to exclude evidence that might disclose sensitive information
about national security matters, and it impinges on the heart of the
Constitution's system of separated powers: the relationship between the
executive branch and the courts. From the early Stuart era, the
Founders of the Constitution drew inspiration from English judges who
had stood up to arbitrary or tyrannical uses of executive power.
This core idea of the judiciary as a check on executive authority,
however, has waned in the glare of late twentieth-century security
panics. In signal cases during the 1970s on wiretapping and executive
privilege, the Court has left open inchoate "national security"
exceptions to constitutional protections. Entering the post-9/11 era,
therefore, the solidity of constitutional protections against executive
predations on national security grounds remained uncertain.
After 9/11, there has been a public perception of judicial
assertiveness thanks to a string of Supreme Court cases in 2004 and
2006 repudiating executive power claims.
But the Supreme Court only takes a fraction of the cases that arise
in the lower courts. And the story of national security cases in the
lower federal courts is in sharp contrast to results in the marquee
cases in the High Court. Generally, lower courts have been more hostile
to challenges to executive power than the Supreme Court-especially when
it comes to "state secrets."
In a string of important cases concerning immigration detention,
extraordinary rendition and warrantless wiretapping, the lower federal
courts have rejected challenges to different national security policies
that trench deeply on executive powers.
In each of these cases, the courts have declined to allow plaintiffs
even entrance to the courtroom, on the ground that a "state secret" (or
some synonym), was at stake. And in each of these cases, the courts
have in essence taken the government's word that no litigation is
feasible and closed the court-house door wholesale, rather than
allowing litigation to proceed while carefully sifting specific pieces
of evidence to guard against improper disclosures.
Particularly perverse is the denial of a forum to journalists and
scholars who are likely victims of NSA surveillance. After the Sixth
Circuit's judgment, these plaintiffs are in a double-bind. They cannot
show they have been harmed by the NSA because they have no evidence
that they have been spied on. But because any such evidence is a "state
secret," they are denied any judicial opportunity to gather it.
Hence, judicial acceptance of the government's claim that "state
secrets" are at issue, and that these secrets mean a plaintiff cannot
be allowed even into the courthouse have a substantial impact on
oversight and accountability.
The "state secrets" privilege does not merely entail that those
harmed by reckless or foolish security policy are deprived of a day in
court. When a plaintiff cannot air evidence in his own custody of
government wrongdoing in court, the public also loses a
constitutionally mandated avenue for testing their government's claims
to be acting lawfully and in line with the nation's best interests. One
of the Constitution's two devices for systemic executive
accountability-the other being congressional oversight-expires.
Perversely, this pushes people inside and outside government to rely
instead on informal mechanisms of oversight-that is, whistle-blowing
and leaking to the press. By repudiating structured means for
challenging wrongdoing, that is, the executive subtly communicates to
those inside government who come across malfeasance that the only
option for redress is exposure by hook or crook.
Ironically, therefore, the refusal to allow judicial review pushes
us toward an unregulated and ad hoc system of oversight through leaks
and whistleblowers, where the chance that truly harmful disclosures
might be made is perhaps higher. (This is merely one of many instances
in which self-serving government policies on security can have a
perverse consequence).
Further, the "state secrets" privilege shores up the Bush
Administration's legacy on national security. Most obviously, in the
short run, it guards against embarrassing disclosures that might mar
its final year (although it is hard to see how this is in the national
interest).
In the medium term, it disables the public from making any real
assessment of whether the reputational harms from our national security
policy-which some think almost irreparable-are worth the candle.
And in the long term, the "state secrets" privilege makes it more
likely that whatever errors the Administration has fallen into in
responding to the post-9/11 terrorist threat will not be corrected-but
entrenched beyond this election.
The new legislation regulating "state secrets" is no panacea. But it
does significantly discourage the kind of threshold dismissals that
occurred in recent cases. Certainly, it does not guarantee that judges
will be sufficiently skeptical of executive branch claims. At minimum,
though, it reminds and directs judges toward the fulfillment of the
role that the Constitution assigns to them-a co-equal component of the
federal government to guard against the foibles and errors of its more
powerful sibling branches.
