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Editorial

The limits of 'state secrets'

A warrantless wiretapping case illustrates the risk of the 'state secrets privilege' being abused.

April 03, 2010

Four and half years after the Bush administration was caught eavesdropping on Americans without court approval, a federal judge in San Francisco has ratified a conclusion many Americans reached long ago: that the administration exceeded its legal authority in the war on terror. But U.S. District Judge Vaughn R. Walker's ruling does more than that. It also reminds the Obama administration, which too often has echoed Bush-era positions on national security issues, that the "state secrets privilege" can cover a multitude of abuses.

The issue before Walker was whether the Al-Haramain Islamic Foundation and two of its lawyers, both U.S. citizens, could recover damages for electronic surveillance conducted without the warrant required by the Foreign Intelligence Surveillance Act, or FISA. Walker ruled for the plaintiffs, despite roadblocks erected by the government.

Adopting the line of the Bush administration, the Obama administration had argued that the plaintiffs couldn't prove that they'd been bugged, and that because of the state secrets privilege, they couldn't ask a court to examine the classified documents that would corroborate that allegation -- including a document that had already, inadvertently, been publicly released. An appeals court sided with the government on the issue of the document, but separate, unclassified information presented by the plaintiffs enabled Walker to conclude that the foundation and its lawyers were unlawfully spied on.

Moreover, Walker slammed the government for invoking the state secrets privilege in a way that created a Catch-22 situation: The government argued that it was not required to respond even to public evidence of illegal wiretapping because the entire issue of whether surveillance took place was simply too sensitive and too secret to be discussed in a courtroom. "Under defendants' theory," he wrote, "executive branch officials may treat FISA as optional and freely employ the [state secrets privilege] to evade FISA, a statute enacted specifically to rein in and create a judicial check for executive branch abuses of surveillance authority."

Thanks to the New York Times' revelation about warrantless wiretapping, Congress subsequently tightened FISA's oversight. But strengthening FISA does not prevent the abuse of the state secrets privilege under which even judges may not examine documents that could substantiate government wrongdoing.

The Obama administration insists that it is being more cautious than its predecessor in asserting the privilege, invoking it only when it's "absolutely necessary to protect national security." There is an easy way for Atty. Gen. Eric H. Holder Jr. to make good on that commitment: He should decline to appeal Walker's ruling.

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