I Could Tell You Why What I'm Doing Is Legal But Then I'd Have To Shoot You

JB

[A]ddressing Judge Anna Diggs Taylor of the Federal District Court, [a government lawyer stated that] "the evidence we need to demonstrate to you that [the NSA program is] lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege. The privilege can limit and even extinguish cases that would reveal national security information, and it is fast becoming one of the Justice Department's favorite tools in defending court challenges to its efforts to combat terrorism.
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The government's main argument today, repeated numerous times, was that more facts are required in the case but that more facts cannot be disclosed. Judge Taylor asked few questions but at one point appeared frustrated by this approach.

"You have conceded, have you not, that a program has been authorized?" she asked Mr. Coppolino. He responded that the administration's public defense of the program has been too general to serve as the basis for judicial adjudication. "There is very much a difference," Mr. Coppolino said, "between the existence of an activity and the details of that activity."

Even portions of the government's brief that were said to demonstrate why further information about the program cannot be disclosed have not been filed in court. Instead, the government "lodged" the brief and other classified papers at the Justice Department in Washington, inviting Judge Taylor to make arrangements to see them. At today's hearing, she shook her head no when Mr. Coppolino asked her whether she had "had a chance to review our classified submission."

I do not mean to suggest that the state secrets privilege should not exist or that it does not have considerable value. Rather, the claim is that the government must do more than simply assert the privilege. The burden should rest on the government to make a fair showing about what elements it can and cannot disclose, and it should be required to assert the privilege in the way that is least destructive of the orderly determination of legal claims. This is especially so when the legality of the government's own actions is at issue. Courts should be reluctant to allow the privilege to quash lawsuits entirely unless there is no practical alternative; the better course is to limit the disclosure of particular types of information, hold in camera hearings, and use other devices to allow the ordinary course of legal proceedings to continue. What the government is doing here is short circuiting that careful balancing of interests. It is trying to stonewall the investigation.

Moreover, the government's demand that Judge Taylor drop everything and fly to Washington to read a secret legal brief is a fairly transparent attempt to impede the procedings. The government transports secret information and sensitive objects all the time. The notion that it cannot transport a file from Washington to Detroit without risking national security is little short of ludicrous. The government will have to do better than this if it wants people to take its claims seriously.

At some point in the process, the court may decide that certain details of the government's program may not be disclosed and it may uphold the state secrets privilege with respect to some elements of the government's program. But that is a far cry from what the government is asking now. The state secrets privilege does not mean and was never intended to mean that the government need do nothing to defend itself other than tell the court that it is the government and therefore it cannot be questioned about its actions.