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Secrets and lies

For too long, judges have allowed the government to hide its mistakes behind claims of national security.

September 16, 2007|Barry Siegel | 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.

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.

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