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

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

Today the United States government took the position that its domestic surveillance program is beyond legal review and that even to hold the program to the basic rudiments of the rule of law-- that is, a hearing to determine whether the program violates the law-- would itself be illegal. From the New York Times:

[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.
. . . .
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."

If the issue were not so grave, the government's arguments would simply be farcical. If the federal judiciary accepts the government's argument to dismiss the case without requiring the government to make somewhat finer grained distinctions about what it can and cannot disclose, it might as well close up shop. The state secrets privilege normally allows the government to refuse to disclose certain information within an ongoing litigation in the interests of national security. Now the Administration is trying to use the privilege to prevent litigation entirely, and, in particular, litigation that accuses the Executive of illegal and unconstitutional activity. Letting the government march into court and shut down inquiries into its possibly illegal actions on its mere say-so creates the worst of bad incentives. If the government can do so in this case, it can and will do the same thing whenever the legality of its actions is challenged in the future, and then we will be well down the road to the destruction of our constitutional system of checks and balances. What is at stake in this case is the principle that the Executive, like all other government servants, is subject to the rule of law.

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.

Posted 4:05 PM by JB [link]

Comments:

Farcical indeed. Should disclosure be in camera or better yet on candid camera?

# posted by

Shag from Brookline : 5:08 PM

The "secret brief" should be any lawyer's favorite part of this story.

I'm pretty sure that *I* would be paying Rule 11 sanctions if I tried that one out in open court. But the feds seem to get away with anything.

# posted by

Anderson : 5:17 PM

Just as we don't need or want to see nuclear bomb blueprints, the state secret privilege SHOULD apply to the algorithms that the NSA is using to go from the tidal wave of incoming information (from the telcos and credit card companies and credit bureaus and ISP's) to the persons of interest who are getting closer (human, either NSA or FBI) scrutiny.

The government, equally, SHOULD have to defend the, ahem, legality of the program. It really is the root of the parallel 'legal' system that Cheney/Addington are establishing.

# posted by

dell : 11:34 PM

Shorter Bush argument: We could tell you, but then we'd have to render you.

# posted by

The Xsociate : 5:10 AM

Fair enough. It is troublesome that the government can just assert national security and attempt to end all inquiry on that point. It seems reasonable to at least require the goverment to brief the judge on the specific reasons as to why the case cannot move forward.

# posted by

Unknown : 9:31 AM

I agree completely. In fact, I am just now about to post on this issue myself, having thought about it for a few days, and had a quick look at some of the relevant rules and authorities: www.corelaw.blogspot.com.

# posted by

Tobias Thienel : 11:01 AM

Just as we don't need or want to see nuclear bomb blueprints

What about hydrogen bomb blueprints assembled from publicly available data plus pure speculation, which turn out to have been incorrect? See U.S. v. Progressive.

# posted by

washerdreyer : 1:16 PM

The burden should rest on the government to make a fair showing about what elements it can and cannot disclose

But that discloses what details of the program are most valuable. That disclosure, per se, is a state secret.

# posted by

37383938393839383938383 : 3:31 PM

It seems that Bush is claiming that he may call judges "at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures."

Fortunately, he has not placed the file in Guantánamo claiming national security reasons.

# posted by

zarevitz : 11:08 AM

the state secret privilege SHOULD apply to the algorithms that the NSA is using to go from the tidal wave of incoming information (from the telcos and credit card companies and credit bureaus and ISP's) to the persons of interest who are getting closer (human, either NSA or FBI) scrutiny.
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# posted by

Unknown : 7:21 AM

It seems reasonable to at least require the goverment to brief the judge on the specific reasons as to why the case cannot move forward.
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