The government claimed the privilege in connection with two cases challenging the Bush administration's domestic surveillance programs, including its controversial warrantless wiretapping operation. Deputy Solicitor General Gregory Garre, arguing for the government, maintained that the cases should be dismissed instantly, no questions asked, because a trial would endanger national security. Presenting any evidence in a courtroom, he said, would put the country at "exceptionally grave harm."
When it comes to national security, Garre said, judges must give the executive branch the "utmost deference."
After listening to such claims for a while, the senior judge on the appellate panel, Harry Pregerson, asked Garre whether the state secrets privilege meant that the courts must simply "rubber stamp" the decisions of the executive. "The bottom line here is the government declares something is a state secret, that's the end of it," Pregerson said. "The king can do no wrong."
"This seems to put us in the 'trust us' category," said Judge M. Margaret McKeown, referring to government assurances that the surveillance program didn't violate the law. "We don't do it. Trust us. And don't ask us about it."
This apparent skepticism on the part of Pregerson and his fellow judges was highly unusual and may signal a new willingness to question government assertions about national security. In recent years, as the Bush administration has relied more heavily on the state secrets privilege to have cases thrown out of court, judges have generally been willing to concede meekly to the government's argument. Could it be that the government has finally overplayed its hand?
The battles over the state secrets privilege go back more than 50 years. Close your eyes and it could be Aug. 9, 1950. In a federal courthouse in Washington that humid day, others faced a similar issue during litigation over the crash of an Air Force B-29 two years earlier near Waycross, Ga. A lawyer for the widows of three civilian engineers who died in that crash wanted the Air Force's accident report, expecting it would shed light on the cause of the disaster. An assistant U.S. attorney balked, arguing that the report could not be released without seriously hampering national security. He presented Air Force affidavits that said the plane was "engaged in a highly secret mission" and "carried confidential equipment." In response, a skeptical U.S. District Judge William Kirkpatrick said, "I only want to know where your argument leads." The assistant U.S. attorney made plain where it led: "We contend that the findings of the [executive branch] are binding . . . upon the judiciary. You cannot review it or interpret it. That is what it comes down to."
Kirkpatrick did not agree. He found the government in default and awarded the widows damages. A three-judge panel of the U.S. 3rd Circuit Court of Appeals unanimously affirmed his decision. But when the matter came before the U.S. Supreme Court, it reversed the lower courts, for the first time formally recognizing a state secrets privilege in the landmark ruling U.S. vs. Reynolds. The government shouldn't have absolute autonomy, wrote Chief Justice Fred Vinson in his 1953 opinion, but if the government can satisfy the court that a "reasonable danger" to national security exists, judges should defer and not force the government to produce documents -- not even for private examination in the judge's chambers.
So it began. Slowly and haltingly, at first, then not so slowly. Between 1953 and 1976, the government invoked the privilege in only five cases; between 1977 and 2001, in 59 cases. In the last six years, the Bush administration has invoked it 39 times, according to the best available count -- or more than six times every year. Along with the numbers, the scope and definition of what constitutes a state secret has expanded -- now including what one judicial decision described as "bits and pieces of seemingly innocuous information" that might form a revealing "mosaic."
Government lawyers have found that merely waving the Reynolds flag in the background for effect gains them deference from judges. Rarely has a court rejected a government claim of privilege.
As a result, Vietnam War protesters subjected to surveillance and wiretapping have not been allowed to sue, blocked by rulings in 1978 and 1982. The retreat of the judiciary has also meant that accused enemy combatants and victims of "extraordinary rendition," such as Maher Arar and Khaled El-Masri, have not been able to protest their treatment in court. Nor have a variety of penalized whistle-blowers and federal employees making discrimination claims against the government. Nor have contractors embroiled in business conflicts with the military, a scientist defamed by accusations of espionage or a sixth-grade boy investigated by the FBI for corresponding with foreign countries during a school project.
Over time, the desire to protect military secrets has started to look a good deal like the impulse to cover up mistakes, avoid embarrassment and gain insulation from liability.
How to know, though? Most often, judges rule blindly, without looking at the disputed documents underlying the state secrets claims. Since 1993, they have required in-camera review in less than an eighth of cases. They choose, instead, to trust the government -- the ultimate act of faith. They opt for deference; deference lets them off the hook. No one wants to be the judge whose decision leads to an apocalyptic disaster. Better to say, we're not equipped, we can't tell whether it implicates national security, we need to leave this to those who know. This is understandable: In an ominous world full of national security threats, it is hard indeed to deny the government.
Yet the Bush administration may finally have escalated the dubious use of the state secrets privilege to a point of resistance. In the summer of 2006, U.S. District Judge Vaughn R. Walker in San Francisco and District Judge Anna Diggs Taylor in Detroit ventured to deny government state secrets claims in the domestic surveillance and eavesdropping cases. "It is important to note that even the state secrets privilege has its limits," Walker wrote. "While the court recognizes and respects the executive's constitutional duty to protect the nation from threats, the court also takes seriously its constitutional duty to adjudicate the disputes that come before it. . . . To defer to a blanket assertion of secrecy here would be to abdicate that duty."
It is Walker's opinion (along with one from Oregon) that came on appeal before the three-judge U.S. 9th Circuit panel last month. By then, the U.S. 6th Circuit had already reversed Taylor's decision, ruling that the plaintiffs there had no legal standing because the state secrets privilege prevented them from learning if they'd been targets of wiretapping. Now, the government wanted Walker's opinion reversed too. But judicial deference, for once, did not seem to be in the air. According to news reports, Pregerson (a President Carter appointee) sounded downright irritated; judges McKeown and Michael Daly Hawkins (President Clinton appointees) at the least were doubtful.
Pregerson wondered what roles judges were to play when the executive branch invoked state secrets: "Who decides whether something is a state secret or not?"
Hearing the deputy solicitor general talk of "ultimate deference" due the executive branch, Pregerson asked: "What does 'ultimate deference' mean? Bow to it?"
That, above all, is the question before the members of the 9th Circuit panel. As they ponder, they would do well to consider Judge Kirkpatrick's response to the same question in August 1950 -- and to what we now know about the government's state secrets claim those many years ago.
Declassified half a century later, the disputed B-29 accident report turned out to tell a tale of military negligence -- maintenance failures, missing heat shields, cockpit confusion -- not one of national security secrets about a radar guidance system. The government, it seems, was seeking to cover its embarrassment and hide its mistakes, not to protect the country's security.
This revelation has helped fuel calls for reform by legal scholars, public interest groups and the American Bar Assn. It should also inspire the 9th Circuit panel in the current cases to think long and hard before trusting the government or accepting its claims. In a system of three separate but equal powers of government, it's time for the judges to do their job.
Barry Siegel, a former Times national correspondent, directs the literary journalism program at UC Irvine. His book on U.S. vs. Reynolds and the state secrets privilege, "Claim of Privilege," will be published next year.