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It is virtually impossible to wrap one’s head around President George W. Bush’s secrecy policies. We hear bits and pieces: The president has authorized the National Security Agency to secretly wiretap American citizens. The administration threatens to sue journalists who leak (I prefer the term “report”) government misconduct. The president appends “signing statements” to the laws he signs, promising to enforce them only in accord with his own (secret) legal views. He grants his troops the power to interrogate prisoners at Guant�namo Bay using “alternative” techniques he will not disclose. Many of these issues and disputes are being put to the legal test, and that litigation might clarify the bounds of Bush’s presidential authority. But a little-known tool is being used to scuttle the cases: the “state secrets” privilege. Under the Bush administration, the privilege is being transformed from a rarely used evidentiary privilege into a frequently invoked doctrine of government immunity. And it is happening, almost entirely, without public notice or outcry. TOO SENSITIVE? There is nothing subtle or complex about the state-secrets privilege, which dates back to the early days of the Cold War. It is a legal doctrine that acknowledges that not all of the president’s doings in the realm of national security should be explored in open court. For the government, the beauty of the state-secrets privilege is that there is virtually no check on it. The Department of Justice may simply decide that a case is too sensitive to go to trial and assert the privilege as a basis for summarily dismissing the entire case. Overwhelmingly, the judiciary agrees to butt out. Not only are the underlying legal claims never put to the test, but the need for secrecy is often never scrutinized. The privilege was first used in a 1953 case called United States v. Reynolds, a negligence action brought against the government by three widows whose husbands were killed in a B-29 explosion over Waycross, Ga. During discovery, the widows asked the government for the accident report. The government refused, claiming that releasing the report would harm national security. For legal support, the government relied on an obscure 1789 statute. As detailed in the new book In the Name of National Security: Unchecked Presidential Power and the Reynolds Case (2006), by Louis Fisher of the Library of Congress’ Law Library, that skinny government claim morphed as the case progressed through the courts. By the time the case reached the Supreme Court, it had become a fully formed doctrine. In its decision, the Court declared that so long as there was a “reasonable danger” that matters of national security could be revealed, the government could withhold classified documents, even from a judge. DRAMATICALLY EXPANDED For decades after its establishment, the state-secrets privilege was rarely invoked. But the Bush administration has dramatically expanded its use, in terms of both frequency and breadth. The Reporters Committee for Freedom of the Press has found that the government asserted the privilege only 55 times between its creation in 1953 and 2001. Since 9/11, however, it has been asserted 23 more times. Even more troubling, the president increasingly uses the privilege as a cudgel, rather than a scalpel. Certainly the executive branch ought to be able to claim that certain pieces of evidence are too hot for the courts to handle. But Bush’s lawyers go further: More and more, they use the privilege to claim that lawsuits should be dismissed in their entirety. It’s no longer limited to keeping plaintiffs from discovering confidential materials. It’s used to bar them from access to the courts. In 2004 the government used the state-secrets privilege to blow up a lawsuit by a former FBI translator who had brought a whistle-blower suit claiming government misconduct. And Canadian citizen Maher Arar, who also was the victim of accidental “extraordinary rendition” and torture — and who has been exonerated in a 1,200-page report from the Canadian government — was met at the courthouse door with government claims that the torture program is a state secret. Last May, Khaled El-Masri, a German citizen who was mistakenly kidnapped, drugged, confined to “black” prisons in Afghanistan, and tortured, was locked out of his own lawsuit after the Justice Department asserted the state-secrets privilege. The federal judge in Virginia accepted the government’s claim. The administration is also using the privilege to try to halt several state cases seeking to enjoin the government’s data-mining activities, claiming, as it recently did in a New Jersey case, that even acknowledging the existence of the NSA surveillance program threatens national security. None of these are negligence cases. These are claims that the government has broken its own laws, and yet the claims have been barred altogether from judicial review. No branch of government should be permitted to simply opt out of being checked. PUSHING BACK Some judges have begun to push back. Last July, a federal judge in California refused a request by the Justice Department to throw out a suit against AT&T Inc. that alleged illegal data mining. Earlier this fall, a federal judge in Michigan, while granting the privilege in one component of a data-mining case, refused to allow the privilege to preclude her from hearing the entire case. And a federal judge in Oregon has allowed a case to go forward despite a state-secrets claim from the government. He has kept a key piece of evidence under lock and key in a briefcase. But he won’t concede that he’s not allowed to look. Reynolds doesn’t offer much guidance to these judges. They are charged, in Chief Justice Fred Vinson’s opinion, with the impossible task of determining “whether the circumstances are appropriate for the claim of privilege,” and yet doing so “without forcing a disclosure of the very thing the privilege is designed to protect.” Judges are left to their own devices to figure out how this might take place. Ironically, the Reynolds case itself highlights the dangers of the state-secrets privilege. In 2000, the daughter of one of the men killed in the B-29 explosion discovered the newly declassified accident report while trolling the Internet. The report noted that the government had ignored two orders for repairs to the airplane and that the airplane was not “safe for flight.” National security was not at stake. The only thing the government sought to hide in Reynolds was its own carelessness. The families attempted to reopen the case based on this discovery, but the courts declined to do so. In Reynolds, Vinson’s majority opinion warned that “judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.” The Supreme Court went on to do just the opposite, as have most of the courts that followed. The result, to quote Fisher, is that courts admit that “they are either intimidated by state secret issues or are essentially in league with the executive branch.” The Bush administration has proved time and time again that many of its most cherished secrets have nothing to do with national security and everything to do with politics and power. Just as a state of war cannot represent a blank check for the president, a claim of national security ought not to justify summarily emptying the courthouses.
Dahlia Lithwick is the Supreme Court correspondent for Slate . This commentary first appeared in the ALM magazine The American Lawyer .

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