State Secrets and Court Cases

          The United States Government recently dismissed a "defamation suit by Greek shipping magnate Victor Restis against a shadyadvocacy group called United Against Nuclear Iran". It's not particularly strange to hear about the United States government dismissing a court case based on national security reasons, but this one does not seem to involve either a government group or a government contractor, setting an upsetting precedent and forcing us to revisit the power the State's Secrets Privilege grants our Executive Branch (for you Americans out there). The States Secrets Privilege has historically been the target of tremendous criticism, mostly in its ability to subvert other forms of law in order to 'protect national security'. It's a tricky issue, such privileged information can prove harmful if divulged recklessly,  but the degree of trust this forces us to place on our legislators can be unsettling. The potential for abuse is tremendous, and as was pointed out by the Guardian'stake on the lawsuit dismissal above, this potential has been realized again and again.

Take for example, the Electronic Frontier Foundation's lawsuit against the NSA are Edward Snowden leaked details on the United State Goverment's massive surveillance program:

"And it doesn’t even matter if the basic facts of the case are already public.

       Take, for instance, the case brought by the Electronic Frontier Foundation (EFF) – my former employer – challenging NSA phone surveillance. It’s been going on since long before the Edward Snowden revelations, and the government has long been invoking the state secrets privilege to argue the court should dismiss EFF’s case before ever getting to the question of whether the NSA’s mass surveillance programs are unconstitutional. Given that the Obama administration has profusely proclaimed its commitment to transparency after all the NSA information went public, you’d think it would look preposterous if they continued to claim it’s a secret in court.

Nope. Instead, Obama’s justice department doubled down on protecting the truth about the NSA. In EFF’s case, the government is still claiming that NSA’s phone and internet surveillance programs are secret and cannot be challenged in open court."

      This sort of 'trust us, we can't tell you, it's for your own good' form of law put a tremendous amount of power in the hands of United State's government and does not appear to hold it to any sort of law except its own opinion. The very point of a National Constitution is to keep the ruling in check, and force all participants in a nation to play by these rules. You would think this would be obvious, but the ability to confer in secret and dismiss cases based on 'national security' has the terrifying ability to enforce any sort of agenda that such information may disrupt.

Though the defense is still subject to judicial review, this has been continually challenged since the Post 9/11 Bush Administration. The following is from a 2006 article regarding the Bush Administration's spike inuses of the State Secrets Privilege:

"In response to every lawsuit, the administration has invoked the previously rare (but, now common) “state secrets” privilege–an extraordinary doctrine which holds that a court should refuse to rule on any matter which the executive claims would risk disclosure of critical state secrets. The Reporters’ Committee for Freedom of the Press reported that while the Executive Branch asserted the privilege approximately 55 times in total between 1954 (the privilege was first recognized in 1953) and 2001, it has asserted it 23 times in the four years after 9/11. The Washington Post’s Dana Priest reported in May that the administration has invoked the doctrine five times in the past year alone.

      As Andrew Zajac wrote in the Chicago Tribune, “The Bush administration is aggressively wielding a rarely used executive power known as the state-secrets privilege in an attempt to squash hard-hitting court challenges to its anti-terrorism campaign. … Judges almost never challenge the government’s assertion of the privilege, and it can be fatal to a plaintiff’s case.”

      Beyond abuse of the state secrets doctrine, the White House, through its loyalists on the Senate Judiciary Committee, has continuously blocked efforts by senators such as Republican Arlen Specter to direct the secret Foreign Intelligence Surveillance Act (FISA) court to rule on the legality and constitutionality of the administration’s warrantless eavesdropping activities. And in each instance where a court would have an opportunity to rule on the program, the administration has invoked procedural doctrines to keep the court from doing so." 

      Though the Executive Branch's challenge of this sort of judicial review ultimately proved fruitless, the implications a successful challenge could have produced are terrifying, and in light of the recent resurgence in the State Secrets Privilege we must be aware of the unnerving degree of control such a privilege can produce.

      I want to be fair to this issue though, and I'm forced to admit that an easy solution likely does not exist. There is no doubt there is classified information that can be harmful to civilians if put in the wrong hands, and I'm sure that I can get along just fine without knowing nuclear launch codes or the United State's Military's latest technical project. When such secrets regard domestic life, like PRISM and phone tapping, the line becomes much blurrier. So what do you guys think about the State's Secrets Privilege?