"What Grounds for Secrecy?," National Law Journal, January 21, 2013. A federal district court on January 2, 2013, denied plaintiffs access to a legal memo that supports the Obama administration's policy of conducting targeted attacks on suspected terrorists, including U.S. citizens. Why should the government be permitted to take the life of a U.S. citizen without giving notice and an opportunity to be heard in federal court? Why keep legal memos secret? Legal analysis is not an "intelligence source or method," required to be kept from the public. At a minimum, the memo could be inspected by a court in camera to determine if it contains material that must be protected from disclosure. The court in this case chose not to do that. A mere ipsi dixit by the executive branch was sufficient to keep the legal memo secret.
Statement before the House Committee on the Judiciary, “The State Secrets Privilege Act of 2009 (H.R. 984),” June 4, 2009. In recent years the State Secrets Privilege has emerged as a central issue in protecting the rule of law, the rights of litigants, and assuring effective checks on executive power. Congress is the most appropriate branch to supply much needed procedures and governing principles to strengthen judicial independence. Contemporary assertions of the privilege pose much greater dangers to constitutional government, individual liberties, and the structural safeguards of checks and balances.
“Judges Need to Look,” Legal Times, November 24, 2008, pp. 34-35. Executive Order 12958 establishes administration policy for classifying national security information. It directs agencies not to use classification to “conceal violations of law.” When private citizens seek government documents under the Freedom of Information Act (FOIA), at times to uncover agency violations, Congress specifically authorized federal judges to examine highly classified documents in their chambers. In a recent case, District Judge Royce Lamberth was asked by private litigants to look at classified transcripts from Guantanamo to determine if there has been torture or abusive interrogations. Instead, he chose to limit his examination to what the Central Intelligence Agency said about the transcripts in an agency affidavit.
“Secret Documents: Why Classify Legal Memos?,” National Law Journal, July 14, 2008. On March 31, 2008, the Bush administration declassified a legal memo issued five years earlier by John Yoo of the Justice Department. The memo is entitled “Military Interrogation of Alien Unlawful Combatants Held Outside the United States.” Although declassified, there is no explanation of when it was classified, why it was classified, and who classified it, all of which is required by Executive Order 12958. The memo consists purely of legal analysis without indicating any matter clearly sensitive and deserving of some level of classification. How can the rule of law be protected when policy is governed by secret legal memos?
Michael B. Mukasey, Attorney General, letter to Senator Patrick J. Leahy, chairman of the Senate Committee on the Judiciary, March 31, 2008. This letter expresses the opposition of the Justice Department to S. 2533, the “State Secrets Protection Act.” Mr. Mukasey states that the “Constitution and settled Supreme Court precedent define the law governing the state secrets privilege, and this well-developed and well-tested body of law already strikes the appropriate balance between the need to protect the national security in civil litigation and the need to protect the rights of litigants in cases that implicate national security information.”
Louis Fisher, Library of Congress, letter to Senator Edward M. Kennedy, April 2, 2008. Contrary to the position of Attorney General Mukasey above, current practice of the state secrets privilege is vigorously contested in many quarters and legislation has been introduced in both the House and the Senate to substantially alter the practices, procedures, and principles governing the state secrets privilege. It is broadly held that current practice is damaging to constitutional rights, the adversary process, judicial independence, checks and balances, and the system of separation of powers.
Statement before the Senate Committee on the Judiciary, "Examining the State Secrets Privilege: Protecting National Security While Preserving Accountability," February 13, 2008. The state secrets privilege is now a central issue and Congress is the appropriate branch of government to supply more effective procedures and governing principles. It is critical what we be able to rely on an independent judiciary to weigh the competing claims of litigants and preserve the adversary process. No litigant, including the executive branch, should be presumed in advance to be superior to the other. The executive branch is not entitled to “utmost deference” or even “deference.” In the past, federal courts have been misled by executive claims about national security, including in the seminal case of United States v. Reynolds (1953).
“Statement before the House Committee on the Judiciary, "Reform of the State Secrets Privilege," January 29, 2008. Following the terrorist attacks of 9/11, assertions of the state secrets privilege represent a serious threat to constitutional government in such cases as NSA surveillance and extraordinary rendition (taking suspects to other countries for interrogation and torture). Even if it appears that the administration has acted illegally, the executive branch advises federal judges that a case cannot allow access to government documents without jeopardizing national security. Self-interested executive claims should not override the independence of the federal judiciary, the corrective mechanism of checks and balances, and the right of private litigants to have their day in court.
“People v. State: Security Secrets Must be Weighed Against America’s Broader Interests,” Legal Times, October 1, 2007, pp. 66-67. In recent cases involving state secrets, federal judges typically put the plaintiff’s interest on one side of the scale and the government’s interest (or “national interest”) on the other. Under this test, the individual can be guaranteed to lose every time. Judicial analysis following this standard protects neither the plaintiff nor the nation. There is no national interest in picking up the wrong person (Khalid el-Masri, for example) and keeping him in prison for five months in Afghanistan. El-Masri was not merely presenting his own personal interest. He represented every innocent individual, U.S. citizen or alien, who wants to avoid a similar fate.
“The State Secrets Privilege: Relying on Reynolds,” 122 Pol. Sci. Q. 385 (2007). The George W. Bush administration invoked the state secrets privilege as an absolute bar to litigation whenever the administration determined that the disclosure of agency documents would harm national security. The cases involved such areas of law as NSA surveillance and extraordinary rendition. This article analyzes the Supreme Court case relied on primarily by the administration, United States v. Reynolds (1953), which for the first time recognized the state secrets privilege. The Court’s decision did great damage to the integrity of the judiciary, the rights of private litigants, and the constitutional system of checks and balances.
"State Your Secrets: When the government cloaks itself in privilege, judges must rule." Legal Times, June 26, 2006, pp. 68-69. When the executive branch claims that a pending case is covered by the state secrets privilege, federal judges must exercise an independent role in examining documents to determine whether the case can continue to discovery. Without that independence, the executive branch gains too much control over the courtroom and denies private litigants an opportunity to pursue their case. If the executive branch invokes the state secrets privilege, it should be understood that the branch that decides questions of privilege and evidence is the judiciary, not the executive.
BooksIn the Name of National Security: Unchecked Presidential Power and the Reynolds Case (Lawrence: University Press of Kansas, 2006): www.kansaspress.ku/edu/fisint.html