Hiding behind secrecy

THE JUSTICE Department told a federal judge Monday that a challenge to the National Security Agency’s controversial domestic eavesdropping program must be thrown out of court because the secrets involved are just too sensitive.

“The evidence we need to demonstrate ... that it is lawful cannot be disclosed without that process itself causing grave harm to the United States’ national security,” said the government’s lawyer, Anthony J. Coppolino.

This is not the first time the Justice Department has invoked what is known as the “state secrets privilege.” It was used, for instance, to dismiss the case of an FBI whistle-blower, and again to derail the case of an African American CIA officer who charged discrimination in the agency. It was used in the case of Khaled Masri, the German citizen who alleges he was detained while on vacation and held for five months in Afghanistan, where he was shackled and beaten before being released as a case of mistaken identity.

Each time, the courts have agreed to dismiss the proceedings simply because the Justice Department says that trying the cases would reveal state secrets.

But that’s not the way it has to be.

The fact is that the branch of government that runs the courtroom and decides questions concerning privilege and the introduction of evidence is the judiciary, not the executive branch. Judges have a constitutional duty to function as neutral referees to allow each side to present its case fairly. A court that automatically accepts the government’s argument about state secrets, without ever looking at the documents in question, aligns the judiciary with the executive branch and eliminates any chance of a fair trial.

The “state secrets privilege” reached the Supreme Court in 1953 in United States vs. Reynolds, a case in which the widows of three civilians who died in the crash of a B-29 bomber sought damages. They asked the government to give them the accident report and the statements of three surviving crew members. Lower courts held that the government must surrender the secret documents to the trial court or lose the case. The judge would examine the documents in his chambers to determine if the government’s demand for secrecy was valid.

Refusing to release the documents, the government lost at the district and appeals court levels. But when the case got to the Supreme Court, the justices reversed course and accepted the government’s argument about state secrets -- without ever looking at the documents. Even having the judge examine the evidence alone in his chambers could jeopardize national security, the majority ruled. When the documents were declassified in the 1990s, it became evident that the Supreme Court had been misled: The documents contained no state secrets.

In his authoritative 1940 treatise on evidence, John Henry Wigmore concluded that the executive branch is entitled to protect state secrets but that in cases in which classified information is at issue, it is up to the judge to decide whether such evidence qualifies as legitimately secret, and thus legally privileged. A court that “abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to bureaucratic officials too ample opportunities for abusing the privilege,” Wigmore warned.

I believe that Wigmore was right and that the Supreme Court decided the Reynolds case wrongly. Some federal judges agreed, and they have continued to recognize their obligation to examine disputed documents in their chambers before passing judgment on matters of evidence and privilege.

In 1971, the U.S. Court of Appeals for the Federal Circuit argued that “an essential ingredient of our rule of law is the authority of the courts to determine whether an executive official or agency has complied with the Constitution and with the mandates of Congress which define and limit the authority of the executive.”

Claims of executive power “cannot override the duty of the court to assure that an official has not exceeded his charter or flouted the legislative will,” the court said.

The executive branch may assert a right to keep its secrets, but this must not be viewed as an absolute right, only a privilege granted by the court when appropriate. Otherwise, even in the age of terrorism, there can be no judicial independence and no fair trial for Americans who would challenge their government.