State Secrets Losing Its Bite

Judge Vaugn Walker, presiding over the FISA-related suit between EFF, AT&T and the government, has demanded that attorneys address a list of eleven questions that suggests a growing skepticism about the State Secrets priviledge. As I pointed out earlier the government basically considers State Secrets to be a bulletproof legal get-out-of-jail-free card and (not coincidentally) government use of the State Secrets priviledge has gone up by a factor of more than seventeen. Don’t get me wrong, the priviledge exists for a reason. We need to keep a lid on cutting-edge nuclear technology and hide the identity of moles in foreign governments, but protecting the administration from political embarassment simply doesn’t cut it. A few questions on the list suggest that Walker is leaning towards the latter:

3. How can the court minimize the conflict between right to litigate this case and the government’s protect state secrets? See Ellsberg v Mitchell, 57 (DC Cir 1983) (“[T]he [state secret] privilege used to shield any material not strictly necessary injury to national security; and, whenever possible, information must be disentangled from nonsensitive to allow for the release of the latter.”).

6. How can confirming or denying the existence of the alleged surveillance program at issue here, or AT&T’s alleged participation in that program, constitute disclosure of a state secret when the program has been so widely reported in the public sphere?

9. If the court denies the government’s motion to dismiss on state secret grounds, what are the parties’ positions on the possible appointment pursuant to FRE 706 of an expert to advise the court on state secret assertions with respect to particular pieces of evidence?

This may seem like less than a total refutation, but I don’t expect any judge to reverse State Secrets jurisprudence overnight. It would make much more sense if justices, sensing a shift towards damage control and away from protecting what a neutral observer might consider a real ‘secret,’ began to express skepticism and gave the government a chance to defend its decisions.

Frankly I doubt that the government is ready or able to present a coherent answer to judge Walker’s questionnaire. This administration has a history of ducking legal oversight that stretches from removing JAG officers from the detainee treatment process to the Jose Padilla debacle to the basic mistrust of the FISA warrant application process that lies at the heart of this current eavesdropping scandal ( see here for more). They don’t think that the law will approve of what they do and they don’t have the nerve to change the law, so they cut the law out of decision making and they count on secrecy to keep it under wraps.

Sounds insightful? Before anybody calls the Pulitzer committee I should point out that highly-incompetent governments always act this way. Stupid decision-making creates a need for privacy, an excess of privacy creates a fertile ground for corruption and the presence of corruption makes the need to privacy even worse. How telling that Dick Cheney, not so much a Veep as the president’s overzealous XO and no stranger to clandestine cronyism, demands to work in near-absolute secrecy.

Back to the point, I think that judge Walker is going about this the right way. Even demanding an explanation is a major step away from the blanket deference that the priviledge usually commands. The government could make their case and prevail here, although question #6 suggests that they have their work cut out for them. If the response is pure amateur hour then Walker has every reason to reverse precedent and put the kibosh on the government’s near-bulletproof get-out-of-embarassment-free card, and set a precedent that a secrecy-obsessed government would clearly prefer not to set.