By Barry Siegel
September 16, 2007
On Aug. 15, before an overflow crowd at the federal courthouse at 7th and
Mission in San Francisco, three judges from the U.S. 9th Circuit Court of Appeals
listened to lawyers argue whether the once-obscure “state secrets privilege”
gives the government an absolute right to withhold documents, bury evidence
and block lawsuits.
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
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
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
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
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
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.
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