Rethink the state secrets privilege

Issue requires same nuanced approach Obama administration has taken to other security matters

May 07, 2010|By Marc A. Sorel

In 1948, the widows of three engineers killed in the crash of a U.S. Air Force B-29 Superfortress plane sued the government for damages. Rather than compensate the women, the United States invoked the state secrets privilege. At the time a little-known rule, the privilege allowed the Air Force to keep accident reports out of court for reasons of national security.

In 1953, the Supreme Court in U.S. v. Reynolds agreed with the Air Force's decision. Thirty years later, however, when the records were declassified, they revealed no secrets — just evidence that the B-29 was poorly maintained. But by then it was too late. The widows had lost their case years before.

Today, the state secrets privilege is no longer an obscure rule of evidence. It is a tool the U.S. government increasingly uses to defend its national security policies in court. Since Sept. 11, the U.S. government has asserted the privilege in more than 100 cases. Despite the notorious outcome in Reynolds, neither the Supreme Court nor the government has adequately clarified how or when the privilege may be used.

Now the government has that chance. The Department of Justice is considering whether to appeal a district court decision in Al-Haramain Islamic Foundation v. Obama. In the case, the Obama administration, like the Bush administration before it, insisted that documents demanded by the plaintiff — a now defunct Islamic charity and its lawyers — are covered by the state secrets privilege. In his recent ruling, U.S. District Judge Vaughn Walker disagreed. As it considers whether to appeal Judge Walker's decision, and as Congress crafts legislation to reform the privilege, the Department of Justice has a long-overdue opportunity to revisit this doctrine.

Undoubtedly, the privilege serves a valuable purpose. Sensitive intelligence sources and methods should not be exposed in open court. Yet the proliferation of the privilege's use since Sept. 11 risks doing damage to America's justice system. In wiretapping cases, for instance, it creates a Catch-22 for plaintiffs who cannot prove their conversations were illegally tapped. Why? Because the documentary evidence they need to maintain their case is often protected by the privilege.

At the same time, the privilege allows the government to justify its circumvention of the usual legal requirements for a wiretap, such as obtaining a warrant. But as the Reynolds case shows, not all government uses of the privilege are legitimate.

As it considers the way forward in Al-Haramain, now is the time for the Justice Department to apply the thoughtful approach it has displayed on other critical national security issues to its consideration of the state secrets privilege. There are hopeful signs it will do so. Attorney General Eric H. Holder has noted in public his commitment to use the privilege "only where absolutely necessary." And a forthcoming report on the use of the privilege will give the government and the public the chance to scrutinize and refine its application.

Legitimately secret information whose disclosure would jeopardize national security must stay secret. Similarly, the government should not get a free pass on its use of the privilege to mask instances of incompetence, negligence or even illegality. By consistently subjecting government claims to searching judicial review — and upholding the assertion of the state secrets privilege where it should be upheld — the government can ensure a workable and intelligent compromise between the due process rights of the American people and the effort to keep them safe.

Marc A. Sorel, who was raised in Maryland, is a Truman Project Fellow and third-year student in the four-year JD-Master of Science in Foreign Service joint degree program at Georgetown University. His e-mail is mas348@law.georgetown.edu.

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