Cutting Back State Secrets Could Clear Way for Telco Surveillance Lawsuits
A bill shrinking the executive branch’s state secrets privilege could remove a major obstacle to lawsuits against telcos alleged to play a role in the National Security Agency’s illegal surveillance program, the Electronic Frontier Foundation said Tuesday at a House Constitution, Civil Rights and Civil Liberties subcommittee hearing. The law should be changed to prevent the executive branch from withholding information “for its own political advantage, or to avoid accountability,” said EFF attorney Kevin Bankston. Subcommittee Chairman Jerrold Nadler, D-N.Y., said he plans to introduce a bill to do that.
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An EFF lawsuit against AT&T has “barely moved out of the starting gate” because the Bush administration has invoked state secrets, which lets the executive branch withhold documents whose exposure would hurt national security, Bankston said. Without the documents, EFF has no case and the court has no choice but to dismiss, he said. Even if the court found violations to Americans’ privacy rights, the government would argue “the court cannot be permitted to so rule, because doing so would expose” a confidential program, he said: “To call such a law Kafkaesque would be an understatement.”
Challenges to NSA wiretapping provide one reason to cut back state secrets, Nadler said. “In recent years, the state secrets privilege has been expanded to not only produce arguably unfair results by preventing disclosure of specific items of evidence but also has been used to block litigation altogether and prevent any examination of challenged government activity,” he said. “We need to consider how we can reform the system to ensure that only truly sensitive information is kept secret.”
Congress should require judges to independently review classified documents and decide for themselves whether public disclosure poses a national security risk, Patricia Wald, a former judge of the District of Columbia Circuit testified. Judges already have the power to review confidential documents, but sometimes courts are so deferential to the executive branch’s confidentiality determination that they “shy away,” she said. Thomas Wells, president-elect of the American Bar Association agreed, saying congressional instruction would increase openness and stop the executive branch from using state secrets to hide evidence that’s embarrassing but not dangerous.
Judges shouldn’t have power to decide what is and what isn’t a threat to national security because they might not have “as full a picture” as the executive branch, said lawyer Patrick Philbin, a former associate deputy attorney general. Judges can be trusted to review classified content, but they must be deferential to the executive branch, he said. Judges must give some deference to the executive branch, Wald agreed. But “utmost deference” can mean automatic lawsuit dismissals, she said.
A Senate bill to shrink state secrets was introduced last week by Sens. Ted Kennedy, D-Mass., Arlen Specter, R- Pa., and Patrick Leahy, D-Vt. Wells and Wald called the bill consistent with their views.
Ranking Republican Trent Franks, Ariz., appeared wary of changing state secrets. He noted a survey concluding that the government isn’t using the privilege any more than it used to. The executive branch needs a state secrets privilege to ensure national security, he said: “The challenge of course is to make a policy that does the best that it can given the fact that the nature of man is to distort things.”
An American Civil Liberties Union statement Tuesday urged Congress to cut back state secrets. “This administration’s use of the state secrets privilege has undermined our system of checks and balances,” said Caroline Fredrickson, ACLU Washington Legislative Office director. “Victims of our government’s extraordinary rendition and domestic spying programs have had the courthouse door slammed in their faces.”